Home » Case Summaries » 2006 » Oregon Natural Desert Ass’n v. U.S. Forest Service


Oregon Natural Desert Ass’n v. U.S. Forest Service


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Oregon Natural Desert Association (ONDA) appealed a judgment that the United States Forest Service’s (USFS) issuance of annual operating instructions (AOIs) was not a final agency action for purposes of judicial review under the Administrative Procedure Act (APA).[1] The Ninth Circuit reversed and remanded, holding that USFS’s issuance of an AOI constituted a “final agency action” and was thus reviewable under the APA because the AOI created binding legal obligations on the permit holder with the possibility of sanctions for non-compliance, and USFS expected the terms of the AOI to be instituted immediately.

Pursuant to the Federal Land Policy Management Act (FLPMA),[2] USFS approves and manages livestock grazing on allotments on national forest land by: (1) issuing grazing permits[3] (usually for ten years),[4] (2) creating Allotment Management Plans (AMPs),[5] and (3) formulating AOIs. A grazing permit authorizes the permit holder to use national forest lands for grazing[6] and sets out “(1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use.”[7] The limits in the permit are established in accordance with the land and resource management plan for the particular forest-unit.[8] USFS must also create an AMP for each allotment establishing the necessary parameters for the allotment to meet the requirements of “multiple-use[s], sustained yield, economic, and other needs and objectives.”[9] AMP parameters may include grazing restrictions and must comply with the law[10] and the applicable forest management plan.[11] In addition to the forest management plan, and the AMP, USFS issues an AOI to each permit holder at the start of the grazing season. In essence, the AOI takes the requirements of the forest management plan, the AMP, and the grazing permit, and establishes parameters for annual operations.[12] The AOI is considered part of the grazing permit, controlling permit holders’ actions for the year. Because AOIs are issued annually, they allow USFS to respond to changed circumstances by imposing conditions that were not included in the AMP or grazing permit.[13]

In 1988, pursuant to the Wild and Scenic Rivers Act (WSRA),[14] Congress set aside portions of the North Fork Malheur and Malheur Rivers as wild and scenic river corridors. Under the 1990 Malheur National Forest Land and Resource Management Plan, over 10,000 acres of land adjacent to the river corridors were designated for grazing allotments. In the present case, ONDA challenged management decisions made by USFS pertaining to grazing on six of those allotments between 2000 and 2004. Specifically, ONDA alleged that: (1) USFS violated the APA by issuing AOIs to permit holders for pastures on protected parts of the rivers, and (2) that the contents of the AOIs violated USFS’s duties under WSRA, the National Forest Management Act (NFMA),[15] the National Environmental Policy Act (NEPA),[16] and the agency’s regulations. The first district court judge to hear the case denied USFS’s motion to dismiss for lack of jurisdiction, determining that the AOIs constituted final agency actions under the APA, thus allowing for judicial review of the claims under the APA.[17] ONDA’s motion for a preliminary injunction, however, was denied.  Following that denial, the parties filed cross-motions for summary judgment and the case was transferred to a different district court judge who found that while an AOI was an agency action, it was not a “final agency action.” Additionally, the court determined that it lacked subject matter jurisdiction to hear ONDA’s WSRA claims and dismissed the case.

As the statutes under which ONDA sought relief do not give a private right of action, [18] ONDA made its claims under the APA. To obtain judicial review under the APA, the agency’s action must be final.[19] An agency action is final if it “(1) mark[s] the consummation of the agency’s decision making process and (2) [is] one by which rights or obligations have been determined, or from which legal consequences will flow.”[20] The Ninth Circuit identified the crux of this question as “whether the agency has completed its decision making process, and whether the result of that process is one that will directly affect the parties.”[21] Additionally, the court stated that when determining whether the agency action is final, the court will consider whether the action “amounts to a definitive statement of the agency’s position, or has a direct and immediate effect on the day-to-day operations of the subject party, or if immediate compliance [with the terms] is expected.”[22] The Ninth Circuit emphasized that the court would focus on the “practical and legal effects of the agency action”[23] and that the finality of an agency action should be interpreted in a “pragmatic and flexible manner.”[24]

The court turned to the USFS’s argument that the court did not have subject matter jurisdiction because the AOI was not a final agency action as it merely implemented the Forest Plan and grazing permit and that the AOI was not even an agency action based on the holding in Norton v. Southern Utah Wilderness Alliance (SUWA).[25]

The Ninth Circuit first considered whether the AOI was an agency action, under SUWA. While the Supreme Court in SUWA stated that agency actions are “limited to the specific categories defined by the APA”[26] the court also indicated that the definition of an agency action also includes “the equivalent or denial thereof, or failure to act.”[27]  Despite an AOI not being listed in the APA, the Ninth Circuit concluded that because a license is defined as the “whole or []part of an agency permit,”[28] and USFS regards the AOIs as part of the grazing permit, AOIs are licenses under the APA, and the issuance of an AOI thus constitutes an agency action.

The Ninth Circuit then applied the Supreme Court’s test under Bennett v. Spear to determine whether the issuance of an AOI is a final action. The first part of the test asks whether the agency action is the consummation of the decision making process,[29] meaning the agency has issued its final decision on the matter.[30] The court considered the purpose of the AOIs in making its determination; AOIs establish annual grazing limits, taking into account changes in the pastures, new science, new rules, and compliance with the prior AOI.  Thus, AOIs are a “critical instrument in the Forest Service’s regulation of grazing on national forest lands”[31] because they ensure that the grazing permit conforms to the forest plan and federal law. The Ninth Circuit looked to Idaho Watersheds Project v. Hahn to support its conclusion. In Idaho Watersheds Project, the court determined that there had been a final agency action when the Bureau of Land Management (BLM) issued a grazing permit because the agency had reached a final decision and put that decision into effect by issuing the permit.[32] In analogizing Idaho Watersheds Project to the present case, the court noted that USFS reached a final decision to allow grazing in the Malheur National Forest, and issuing permits put that decision into effect. Additionally, USFS retained the ability to add terms and conditions to the grazing permit on an annual basis, by issuing AOIs. Thus, AOIs are USFS’s final determination before the permit holder is able to graze livestock for the season.[33] Therefore, the court reasoned, AOIs are the consummation of USFS’s decision making process regarding grazing allotments.

The Ninth Circuit rejected USFS’s argument that because AOIs only put into place prior decisions made by the USFS, they are not final agency actions. The Ninth Circuit turned to Abramowitz v. EPA for the proposition that the effect of the action, not the label, defines an agency action,[34] and to Oregon v. Ashcroft for the statement that “finality is to be interpreted in a pragmatic way.”[35] While the Ninth Circuit acknowledged that the USFS was correct in stating that the grazing permit binds the permit holder to the applicable forest plans and federal laws, the court clarified that AOIs are the vehicle for ensuring annual compliance with the forest plan and laws.

The court then turned to part two of the Bennett test, which states that the agency action resulting from the consummation of the decision making process is final if “rights or obligations have been determined, or . . . legal consequences will flow.”[36] In Bennett, the Court determined that the second part of the test was met because the action altered the legal system governing the Secretary of the Interior.[37] The Ninth Circuit sought to clarify the holding in Bennett by pointing out that the Court did not hold that the only way for an action to qualify as final is to alter the legal regime. The Ninth Circuit turned again to Ukiah Valley Medical Center v. FTC for rule that an agency action is final if it has a “direct and immediate . . . effect on the day-to-day business’ of the subject party”; in making its determination, the court would consider “whether the [action] has the status of law or comparable legal force, and whether immediate compliance with its terms is expected.”[38] The court also looked to Anchustegui v. Department of Agriculture to support the determination that AOIs have legal consequences.[39]

The Ninth Circuit then identified two bases that illustrate the finality of the AOIs at hand: (1) notices of non-compliance and USFS’s threat of actions against two ranches grazing in the Malheur National Forest for violations of the AOIs and grazing permits, and (2) the use of AOIs to impose endangered species standards. Under the APA, USFS may issue a Notice of Non-Compliance (NONC) to permit holders.[40] In the present case, USFS issued two NONCs to ranches grazing in the Malheur National Forest. As a result of non-compliance, administrative sanctions involving modifications of the grazing permit were imposed on one ranch. The Ninth Circuit rejected the USFS’s argument that because sanctions against an AOI violation are based on the permit, the AOI does not have a legal effect. The Ninth Circuit adopted the district court’s reasoning, restating that “[s]imply because an AO[I]’s authority is drawn from the permit does not make the agency’s decision reflected in the AO[I] any less of a final agency action.”[41] The Ninth Circuit determined that USFS’s ability to initiate enforcement action against the permit holder based on a violation of an AOI demonstrates the legal force of the AOI and shows that USFS expects “immediate compliance with its terms.”[42]

The court then considered the fact that USFS used AOIs to implement standards issued under the Endangered Species Act (ESA)[43] to protect the threatened bull trout. After the bull trout was listed, USFS primarily used AOIs to implement the bull trout standards for the grazing permits within the Malheur National Forest. The court determined that the use of the AOIs to impose ESA standards showed that AOIs “restrict[] the rights of and confer[] duties on a grazing permit holder,”[44] and therefore fixed the legal relationship between the USFS and the permit holder. The Ninth Circuit rejected the USFS’s final argument that permit holders could still graze the allotment without an AOI, provided they complied with their permits. The court looked to the reality that permits require annual USFS approval, which is granted along with the issuance of an AOI, and the AOI contains the specific terms and conditions that the permit holder must meet to graze in the coming year. Thus, the Ninth Circuit held that AOIs constitute final agency actions.

The Ninth Circuit concluded that USFS’s issuance of an AOI constituted a “final agency action” under section 704 of the APA because: (1) the AOI was the final determination of the agency for the year, (2) it created binding legal obligations on the permit holder with the possibility of sanctions for non-compliance, and (3) USFS expected the terms of the AOI to be instituted immediately. The court concluded that as a “final agency action,” an AOI is judicially reviewable under section 706(2)(A) of the APA. The Ninth Circuit reversed the district court’s decision and remanded the case to determine the merits of the claims.

Judge Fernandez dissented from the majority’s opinion because he believed that the final agency action reviewable under the APA was the issuance of the grazing permit, not the issuance of an AOI. While Judge Fernandez acknowledged that AOIs implement changes in the grazing program, he looked to the characterization of the AOIs by the USFS to support his view that AOIs are not final agency actions. Relying on City of San Diego v. Whitman for the proposition that the characterization of an action by the agency is informative about the type of the action,[45] Judge Fernandez thought it significant that the USFS did not view AOIs as a final agency action but as a way to manage the grazing program and implement the permits. Instead of following the majority’s reasoning, Judge Fernandez adopted a pragmatic approach to determine what constitutes a final agency action by espousing the “implementation concept.” This concept states that “if [the agency action] is merely implementing an earlier truly final determination, it is not final action for APA review purposes.”[46] In Judge Fernandez’s view, an AOI implements a permit that had already been issued and impacts the day-to-day decisions of the permit holder; therefore it is not reviewable. Judge Fernandez looked to Norton v. Southern Utah Wilderness Alliance for the principle that it is not the role of the judge to manage the day-to-day workings of the agency.[47] Finally, Judge Fernandez expressed concern that allowing review of all AOIs would prevent the cattle from grazing, thereby frustrating the purpose of the grazing program.

[1] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[2] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2000).

[3] 43 U.S.C. § 1752(a) (2000); 36 C.F.R. §222 (2006).

[4] 36 C.F.R. § 222.3(c)(1) (2006).

[5] 43 U.S.C. § 1752(d) (2000); 36 C.F.R. § 222.1(b) (2006).

[6] 36 C.F.R. § 222.1(b)(5) (2006); 43 U.S.C. § 1702(p) (2000).

[7] Or. Natural Desert Ass’n v. USFS (ONDA), 465 F.3d 977, 980 (9th Cir. 2006); see also 36 C.F.R. §§ 222.1-222.4 (2006), 43 U.S.C. § 1752 (2000).

[8] 36 C.F.R. § 222.3(c)(1) (2006); Forest Service Handbook 2209.12, § 94.2.

[9] 43 U.S.C. § 1702(k)(1) (2000).

[10] 36 C.F.R. § 222.1(b) (2006); 43 U.S.C. §§ 1702(k)(1), 1752(d) (2000).

[11] 16 U.S.C. § 1604(i) (2000); see also Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1062 (9th Cir. 2002) (noting that specific Forest Service projects must be in accord with the relevant Forest Plan).

[12] See Forest Service Manual § 2212.3.

[13] See Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1126 (9th Cir. 2001) (describing an AOI drafted in light of over-grazing in riparian and upland areas the previous year).

[14] Wild and Scenic Rivers Act of 1968, 16 U.S.C. §§ 1271-1287 (2000).

[15] 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).

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

[17] Or. Natural Desert Ass’n v. USFS, 312 F. Supp. 2d 1337, 1341-43 (D. Or. 2004).

[18] See Administrative Procedure Act, 5 U.S.C. §§ 702-706 (2000) (establishing that “any person suffering legal wrong because of an agency action” is entitled to judicial review, and setting out the form and scope of judicial review generally); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990).

[19] 5 U.S.C. §§ 702-706 (2000).

[20] ONDA, 465 F.3d at 982 (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)).

[21] Id. (quoting Indus. Consumers of Nw. Utils. v. Bonneville Power Admin., 408 F.3d 638, 646 (9th Cir. 2005).

[22] Id.

[23] Id.

[24] Id. (quoting Or. Natural Res. Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir. 1995).

[25] Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004).

[26] ONDA, 465 F.3d at 983 (quoting S. Utah Wilderness Alliance, 542 U.S at 62).

[27] Id.

[28] 5. U.S.C. § 551(8) (2000).

[29] Bennett v. Spear, 520 U.S. 154, 178 (1997).

[30] Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001) (internal quotations and citation omitted).

[31] ONDA, 465 F.3d at 984.

[32] Idaho Watersheds Project, 307 F.3d at 828.

[33] Whitman, 531 U.S. at 478.

[34] Abramowitz v. EPA, 832 F.2d 1071, 1075 (9th Cir. 1987).

[35] Oregon v. Ashcroft, 368 F.3d 1118, 1147 (9th Cir. 2004) (internal quotations and citation omitted).

[36] ONDA, 465 F.3d at 986 (quoting Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotations and emphasis omitted).

[37] Bennett, 520 U.S. at 178.

[38] Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir. 1990) (internal quotations omitted, alternation original).

[39] Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1128 (9th Cir. 2001).

[40] 5 U.S.C. § 558(b)-(c) (2000).

[41] ONDA, 465 F.3d at 987 (quoting Or. Natural Desert Ass’n v. USFS, 312 F. Supp. 2d ­­­­1337, 1343 (D. Or. 2004) (alteration in original)).

[42] Id. (quoting Ukiah Valley Med. Ctr., 911 F.2d at 264).

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

[44] ONDA, 465 F.3d at 989.

[45] City of San Diego v. Whitman, 242 F.3d 1097, 1101 n.6 (9th Cir. 2001).

[46] ONDA, 465 F.3d at 991.

[47] Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004).

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