Category Archives: Grazing

Idaho Watersheds Project v. Hahn

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Plaintiff environmental groups appealed from the district court’s denial of their motion for a preliminary injunction limiting grazing in two grazing allotments on the Owyhee Resource Area in Idaho. The complaint alleged that (1) conditions in the Owyhee Resource Area violated the Bureau of Land Management’s (BLM) 1995 “Fundamentals of Rangeland Health” (FRH) regulations,[1] and (2) the BLM’s unreasonable delay in complying with the FRH regulations violated section 706(1) of the Administrative Procedure Act.[2] The injunction sought to enjoin hot season grazing from July 15 to September 30, 1999 in riparian pastures within the allotments, and to order BLM to implement changes in grazing management in the allotments by the start of the 2000 grazing season. The Ninth Circuit reversed the district court’s order denying the preliminary injunction and remanded to the district court to consider the possibility of irreparable injury and whether the balance of the hardships favored the plaintiffs.[3]

In denying the motion for a preliminary injunction, the district court had found that the plaintiffs had failed to show a likelihood of success on the merits because BLM had satisfied its FRH management obligations for the two allotments. The FRH regulations require BLM to “take appropriate action” when it determines that existing grazing practices or levels of use on public lands are significant factors in a failure to achieve the FRH standards and guidelines.[4] “Appropriate action” means that BLM must consult with relevant parties, issue a proposed decision, consider any protests, and render a final decision.[5] BLM made an initial determination in October of 1997, but did not issue a final decision modifying the relevant grazing permit and implementing changes in grazing management practices until after the full 1998 grazing season had passed.

The agency claimed that it is only required to begin the FRH procedures by consulting affected parties before the next grazing season begins. However, the Ninth Circuit interpreted the FRH regulations to mean that BLM must complete all of the FRH procedures–from consultation with the relevant parties through rendering a final decision–and issue its final decision by the start of the next grazing season. The court found that the plain language of the regulations indicates that action that results in progress toward fulfillment of ecological standards and guidelines must be taken before the start of the next grazing season. As additional support for its interpretation, the court quoted a BLM instruction memorandum that states, “43 CFR subpart 4180 was written to achieve positive, on-the-ground changes in resource conditions. . . . Success will be measured in terms of procedural actions.”[6]

[1] 43 C.F.R. § 4180.1 (1998).

[2] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

[3] 187 F.3d 1035 (9th Cir. 1999).

[4] 43 C.F.R. § 4180.2(c) (1998).

[5] 43 C.F.R. §§ 4110, 4120, 4130, 4160 (1998).

[6] Idaho Watersheds Project v. Hahn, 187 F.3d 1035, 1037 (9th Cir. 1999).

Forest Guardians v. Johanns

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Forest Guardians appealed a judgment, which held that the United States Forest Service (USFS) complied with the Endangered Species Act (ESA)[1] despite USFS’s failure to re-initiate consultation with the United States Fish and Wildlife Service (FWS) after deficiently monitoring grazing utilization levels on pastures in the Water Canyon allotment within the Apache-Sitegreaves National Forests in Arizona. The Ninth Circuit reversed the district court’s judgment and remanded the case for entry of summary judgment in favor of Forest Guardians, holding that USFS’s failure to re-initiate consultation violated the ESA because the promulgated regulations require consultation when agency action is changed, and that change could affect an endangered species or habitat in ways not previously considered.[2]

Section 7 of the ESA prohibits government agencies from undertaking actions that would pose a risk to the continued existence of endangered species or their habitat.[3] To ensure compliance, agency actions undertaken in an area where a listed endangered species may be present are subject to inter-agency consultation,[4] either formal[5] or informal.[6] An agency does not have to enter the more rigorous formal consultation with FWS if the agency conducts informal consultation that indicates “the [agency] action is not likely to adversely affect listed species or critical habitat.”[7] However, the court discussed two relevant circumstances in which informal consultation must be re-initiated: (1) “If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered,”[8] or (2) “If the identified action is subsequently modified in a manner that causes an affect to the listed species or critical habitat that was not considered in the biological opinion.”[9]

The court next turned to the factual and procedural background. In 1997, Forest Guardians brought suit challenging USFS’s issuance of over a thousand grazing permits allowing grazing on allotments on national forest land in Arizona and New Mexico, and alleging USFS did not consult with FWS as required by the ESA prior to granting the permits. Following the 1997 suit, USFS and FWS created guidance criteria for reviewing USFS management of the targeted land allotments. Meeting the criteria allowed USFS to presume a FWS finding of “not likely to adversely affect listed species or critical habitat.” The Water Canyon Allotment, which covers 52,000 acres of the Apache-Sitgreaves National Forest in Arizona, was one of the allotments for which USFS and FWS established guidance criteria. The Water Canyon criteria required USFS to monitor the use levels of each grazed pasture halfway through the grazing period. Additionally, the guidance criteria recommended that USFS monitor the utilization level in the pastures at the beginning and end of the grazing periods. If USFS confirmed each year that the guidance criteria were being met, it could presume an FWS finding that grazing in the Water Canyon allotment was “not likely to adversely affect listed species or critical habitat.” With the guidance criteria in effect, USFS granted Water Canyon grazing permits on June 11, 1999. However, USFS monitored only one pasture in 1999 and 2000, two in 2001, and one in 2002, while three or more were grazed in each of those years. The results revealed higher utilization levels than permitted in three instances. Nevertheless, USFS and FWS did not re-initiate consultation and USFS continued to enter annual findings on behalf of FWS that grazing in Water Canyon was “not likely to adversely affect listed species or critical habitat.”

Forest Guardians brought this lawsuit in April 2001, alleging that USFS violated the ESA by not re-initiating consultation after failing to adequately monitor numerous grazed allotments. More specifically, Forest Guardians alleged that USFS’s failure to monitor utilization levels on various grazing allotments, including Water Canyon, invalidated FWS’s annual concurrence that the grazing was “not likely to adversely affect listed species or critical habitat.”

The district court found that the ESA and its promulgated regulations did not require re-initiation of consultation between the agencies because the total number of cattle pairs grazing the pastures was lower than allowed. Thus, the district court reasoned, the lower cattle pair levels supported a finding that grazing in Water Canyon was “not likely to adversely affect listed species or critical habitat” despite the USFS’s deficient monitoring.[10]

The Ninth Circuit first addressed whether the case had become moot because USFS and FWS had re-initiated consultation.[11] A case is moot if there is no longer a controversy,[12] but a case is not moot if “any effective relief may be granted.”[13] The party claiming mootness has the burden of showing that the court cannot provide an effective remedy.[14] The Ninth Circuit stated that the present case dealt with a continuing practice; that is, to allow grazing to continue on the Water Canyon allotment for the remainder of the ten-year permit USFS needed to receive an annual FWS finding of “not likely to adversely affect.”[15]  Additionally, the court noted the high likelihood of USFS’s not meeting the future monitoring requirements despite the agencies’ re-initiation of informal consultation. The court then determined that declaratory judgment was an effective available remedy to Forest Guardians, because declaratory judgment would prohibit the Forest Service from violating the ESA for the remaining years of the permits on the allotment.[16]

The court then turned to the central issue, whether USFS violated section 7 of the ESA by not re-initiating consultation with FWS following USFS’s inadequate monitoring.[17] The ESA’s promulgated regulations require agencies to re-initiate consultation if an agency changes its actions in a way not previously considered that may impact a listed species or critical habitat.[18] The agency is charged with showing that the agency action is “not likely to adversely affect listed species or critical habitat.”[19] In drawing an analogy between the present case and Sierra Club v. Marsh,[20] the Ninth Circuit reasoned that proper monitoring of the utilization levels of the pastures in the Water Canyon allotment was necessary to a FWS finding that grazing was “not likely to adversely affect listed species or critical habitat.” Because USFS’s failure to monitor the utilization levels affected listed species “in a way or to a degree not previously considered,” USFS and FWS were required to re-initiate consultation.

The Ninth Circuit rejected USFS’s argument that its failure to monitor the utilization levels was a “minor dispute” that did not require re-initiation of consultation.[21] The court stated that sufficient monitoring of utilization levels was central to FWS’s determination of “not likely to adversely affect listed species or critical habitat.” To support its proposition, the court pointed to a USFS memorandum stating the critical link between monitoring and agency determinations. The Ninth Circuit also looked to Gifford Pinchot Task Force v. United States Fish & Wildlife Service[22] to support its position that affirmative evidence showing ineffective monitoring can invalidate agency conclusions. The Ninth Circuit then considered the USFS monitoring record, which revealed incomplete monitoring and over-utilization, and determined that the evidence was sufficient to invalidate the agency’s “not likely to adversely affect” conclusion on the Water Canyon allotments.

The Ninth Circuit also rejected USFS’s argument that the monitoring requirements under the guidance criteria were “unreasonable.” The court rejected this argument principally because USFS and FWS had designed the guidance criteria and jointly agreed that compliance with the monitoring standards and conforming utilization levels were pre-requisites to an FWS finding that grazing was “not likely to adversely affect listed species or critical habitat.”

Finally, the Ninth Circuit rejected USFS’s argument that the district court was correct in finding that a lower number of cattle grazing the pastures would result in acceptable utilization levels. The Ninth Circuit stated that there was no evidence in the record to support the correlation between the number of livestock grazing a pasture and the utilization level. To the contrary, the 2002 recording indicated that with only seventy-four pairs of cattle, a dozen pairs fewer than contemplated, the utilization level on two sites was nonetheless over the allowable level.

The Ninth Circuit concluded that the ESA required USFS to re-initiate informal consultation with the FWS because not only was the monitoring deficient but the results of the monitoring indicated over-utilization, which amounted to modifications to the allotment guidance criteria that may impact a listed species. While the court stated that not every departure from the Water Canyon guidance criteria required re-initiation of consultation, the court noted that the deviations before the court were numerous and material. Therefore, USFS’s failure to re-initiate consultation with FWS was a violation of the ESA. The Ninth Circuit reversed the district court’s judgment and remanded the case for entry of summary judgment in favor of Forest Guardians.

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

[2] 50 C.F.R. § 402.16 (2005).

[3] 16 U.S.C. § 1536(a)(2) (2000).

[4] 16 U.S.C. § 1536(c) (2000).

[5] 16 U.S.C. § 1536(b)(3)(A) (2000).

[6] 50 C.F.R. § 402.13 (2005).

[7] Id.

[8] 50 C.F.R. § 402.16(b) (2005).

[9] 50 C.F.R. § 402.16(c) (2005).

[10] Forest Guardians v. Johanns, 450 F.3d 455, 460-61 (9th Cir. 2006).

[11] The result of the re-initiated consultation was an FWS finding that the grazing was “not likely to adversely affect” the endangered species and critical habitat within the Water Canyon allotment.

[12] Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997).

[13] Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (emphasis in original).

[14] S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1134 (9th Cir. 2004).

[15] Compare S. Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997) (finding a claim moot because the relevant agency undertook ESA consultation with FWS  regarding a forest management plan).

[16] See also Nw. Envtl. Def. Ctr., 849 F.2d at 1241 (determining that while an injunction was no longer appropriate to enforce a fisheries management plan because the salmon season had ended, declaratory relief was available and would ensure future compliance).

[17] The adequacy of USFS’s monitoring was not disputed by either party, and therefore not addressed by the court.

[18] 50 C.F.R. § 402.16 (2005).

[19] Endangered Species Act of 1973, 16 U.S.C. § 1536(a)(2) (2000).

[20] In Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987), the plaintiffs sued the Army Corps of Engineers for refusing to re-initiate consultation with FWS when mitigation projects required by the development plan were not implemented. The court determined that the Army Corps of Engineers had violated ESA regulations because failing to implement mitigation measures could impact an endangered species in a way or manner not previously considered.

[21] See id. (noting that only the most important project modifications require an agency to re-initiate consultation).

[22] See Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (determining the Northwest Forest Plan required species monitoring to support the no-jeopardy finding under the ESA, and absent the monitoring, there would be no basis for the finding).

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).