Forest Guardians v. United States Forest Service

concurring in part, dissenting in part:

I concur in the all of the majority’s opinion except section V. I respectfully dissent from the majority’s holding in section V that the Forest Service (“Service”) complied with the Forest Plan when it allocated 100 percent of the available forage to livestock and relied on monitoring to help determine grazing capacity. In my view, the Service’s Allotment Management Plan did not comply with the Forest Plan and therefore violated the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. § 1600 et seq. See 16 U.S.C. § 1604 (1) (“Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.”); 36 C.F.R. § 219.10 (“All site-specific decisions, including authorized uses of land, must be consistent with the applicable plan.”).

According to the Forest Plan, the Service was obligated to consider the grazing needs of wild ungulates in determining the amount of forage available for livestock grazing. For example, the Plan states: (1) “The needs of wildlife will be considered when establishing livestock grazing capacity”; (2) “Allotment…

Opinion by Judge WALLACE. Opinion concurring in part and dissenting in part by Judge PAEZ.

OPINION

Forest Guardians and the White Mountain Conservation League (collectively, Forest Guardians) appeal from a summary judgment in favor of the United States Forest Service (Service) regarding the Service’s adoption of certain measures relating to cattle grazing on land in the Apache-Sitgreaves National Forest. The district court had jurisdiction over the claims pursuant to 28 U.S.C. § 1331 and 16 U.S.C. § 1540 (g). We have jurisdiction over Forest Guardians’ timely appeal pursuant to 28 U.S.C. § 1291 . After the briefs were filed, but before argument was heard, the Service filed a motion notifying the court that intervening events rendered moot some of Forest Guardians’ claims. After oral argument, Forest Guardians filed its response to the mootness motion. We dismiss in part and affirm in part.

I.

The Service is currently responsible for managing the 191 million acres of land in the National Forest System. The Apache-Sitgreaves National Forest is managed by the Southwest Region of the Service and is located in the central eastern portion of Arizona that is bordered by New…