Oregon Natural Desert Association v. United States Forest Service

This appeal presents the narrow question whether the United States Forest Service’s issuance of annual operating instructions (“AOIs”) to permittees who graze livestock on national forest land constitutes final agency action for purposes of judicial review under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702-706 . The district court held that the AOIs were not final within the meaning of Section 10(c) of the APA, 5 U.S.C. § 704 , and dismissed plaintiffs’ lawsuit for lack of subject matter jurisdiction. We conclude that the Forest Service’s action in issuing the AOIs is “final agency action” under § 704 and therefore that plaintiffs’ claims are ripe for judicial review. Accordingly, we reverse the district court’s dismissal order and remand for a determination of the merits of plaintiffs’ claims.

I.

The Federal Land Policy and Management Act of 1976 (1701-1784), authorizes the Forest Service to allow livestock grazing on specified allotments 2 within a national forest. The Forest Service authorizes and manages grazing on specified allotments by issuing (1) a grazing permit pursuant to 43 U.S.C. § 1752 (a) and 36 C.F.R. § 222 ; (2) an Allotment Management Plan…

Dissenting:

As I see it, the final agency action took place when the Forest Service issued the permits to allow grazing by certain numbers of livestock for certain periods on designated land allotments. 1 Those permits themselves provided for the possibility of cancellation or suspension. More than that, they provided for periodic changes and adjustments, as needed, for resource protection — for example, adjustment of the grazing season by changing the dates of entry and the dates of removal. In other words, the permits contemplated that the Forest Service would give instructions from time to time in order to assure that grazing was conducted in accordance with law and in a way that did not unduly damage the land itself. As relevant here, that was accomplished through the use of AOIs. Typically those are negotiated documents wherein the per-mitees agree with the Forest Service about the proper use of the land. The AOIs, themselves, are subject to change during the grazing season, if that becomes desirable. Instructions under the permits also reach the permitees by on-the-spot comments by Forest Service personnel or by telephone.

ONDA claims that each AOI is a final agency action…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON NATURAL DESERT 

ASSOCIATION; CENTER FOR

BIOLOGICAL DIVERSITY,

Plaintiffs-Appellants, v.

UNITED STATES FOREST SERVICE,

Defendant-Appellee, ROBERTSON RANCH; OREGON No. 05-35637

CATTLEMEN’S ASSOCIATION,

Defendants-Intervenors-  D.C. No.

CV-03-00213-REJ

Appellees,

OPINION

and ROGER W. WILLIAMS, Malheur National Forest Supervisor, Defendant,

LAURI JOYCE; PATRICK JOYCE;

CAROL ROBERTSON; J. W.

ROBERTSON,

Defendants-Intervenors.  Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding

Argued and Submitted March 7, 2006—Portland, Oregon

Filed September 21, 2006

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

11831 11832 OREGON NATURAL DESERT v. USFS Opinion by Judge Paez; Dissent by Judge Fernandez 11834 OREGON NATURAL DESERT v. USFS

COUNSEL

Peter M. Lacy, Oregon Natural Desert Association, Portland, Oregon; Stephanie M. Parent, Pacific Environmental Advo- cacy Center, Portland, Oregon, for the plaintiffs-appellants.

Kelly A. Johnson,…