Oregon Natural Desert Association et al v. United States Forest Service et al
Filing
501
OPINION & ORDER: Adopting the Magistrate's Findings and Recommendation 485 . Plaintiffs' Motion for Summary Judgment 416 is Denied, Federal Defendants' Amended Motion for Summary Judgment 482 is Granted, Intervenor-Defendants' Corrected Cross-Motion for Summary Judgment 459 is Granted, and this action is Dismissed with prejudice. Signed on 4/16/18 by Judge Michael W. Mosman. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
OREGON NATURAL DESERT
ASSOCIATION et al.,
No. 3:03-cv-0213-PK
Plaintiffs,
OPINION AND ORDER
v.
UNITED STATES FOREST SERVICE,
et al.,
Defendants,
and
JEFF HUSSEY, et al.,
Intervenor-Defendants.
MOSMAN, J.,
On October 3, 2017, Magistrate Judge Paul Papak issued his Findings and
Recommendation (F&R) [485], recommending that Plaintiffs’ Motion for Summary Judgment
[416] should be DENIED, Federal Defendants’ Amended Motion for Summary Judgment [482]
should be GRANTED, Intervenor-Defendants’ Corrected Cross-Motion for Summary Judgment
[459] should be GRANTED, and this action should be dismissed with prejudice. The F&R
DENIED as moot Intervenor-Defendants’ Corrected Motion to Strike Plaintiffs’ Extra-Record
Filings [458]. Plaintiffs and Federal Defendants objected [489, 490]. Plaintiffs, Federal
1 – OPINION AND ORDER
Defendants, and Intervenor-Defendants responded [495, 496, 497]. I held oral argument on April
5, 2018 on the parties’ objections and responses [500].
DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court
is not required to review, de novo or under any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F&R to which no objections are addressed. See
Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R
depends on whether or not objections have been filed, in either case, I am free to accept, reject,
or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
Upon review, I agree with Judge Papak’s recommendations and I ADOPT the F&R [485]
as my own opinion. I write separately to clarify certain issues raised in the parties’ objections
and at oral argument.
I.
Justiciability
A. Challenge to Agency Pattern, Practice, or Policy
The F&R concludes that Plaintiffs’ challenges to the Forest Service’s final grazing
decisions on the seven allotments are not programmatic challenges and are therefore justiciable.
F&R [485] at 10–11. Federal Defendants object to this conclusion and urge the Court to instead
conclude that Plaintiffs are challenging the Forest Service’s grazing “program,” rather than
individual decisions that constitute final agency actions. Fed. Defs. Objections [490] at 9–11.
2 – OPINION AND ORDER
Plaintiffs argue they are challenging a series of final agency actions that are justiciable, but agree
that the F&R uses some “programmatic” language. Pls. Response [497] at 4–5. At oral argument,
Federal Defendants argued that the F&R’s conclusion on this issue was problematic for two
reasons: first, because of the sheer number of agency decisions challenged by Plaintiffs (over
100), and second, because their operative Complaint effectively challenges all agency decisions
within a program.
Numerically, Plaintiffs’ challenge is not troubling. This case spans a fifteen-year history,
which required Plaintiffs to add challenges over the years to many agency decisions on these
seven allotments. And there is no reason Plaintiffs’ decision to challenge a large number of
agency decisions in one lawsuit, versus multiple lawsuits, is per se problematic under the
Administrative Procedure Act (APA).
I agree with the F&R, however, that the programmatic issue is a “close question” under
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). As the Supreme Court held in
Lujan, a party may not challenge an entire program under the APA, but instead “must direct its
attack against some particular ‘agency action’ that causes it harm.” Id. at 891. At oral argument,
the parties agreed that a plaintiff’s claims challenging every agency decision within a grazing
program could theoretically be barred by Lujan. See id. (“[The] respondent cannot seek
wholesale improvement of this program by court decree, rather than in the offices of the
Department or the halls of Congress, where programmatic improvements are normally made.”).
But Federal Defendants conceded at oral argument that significant portions of the Malheur
National Forest would be left untouched by any decision in this case. And by challenging
individual agency actions such as grazing permits and annual operating instructions (AOIs), the
operative Complaint in this case complies with Lujan’s requirement that plaintiffs challenge
3 – OPINION AND ORDER
specific agency actions. See Oregon Nat’l Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 990
(9th Cir. 2006) (concluding that “an AOI is a final agency action subject to judicial review under
§ 706(2)(A) of the APA.”). Furthermore, the Ninth Circuit has held that plaintiffs may seek
review of broader practices by challenging a specific agency action tied to those practices.
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1067 (9th Cir. 2002) (“[I]n order to
win scrutiny of the Forest Service’s forest-wide management practices, Neighbors must
challenge a specific, final agency action, the lawfulness of which hinges on these practices.”).
Although Plaintiffs here challenge over 100 AOI and permit decisions, each of these
decisions on its own is a final agency action. Framing this as one suit challenging numerous
permitting and other decisions, I agree with the F&R that Plaintiffs may challenge the Forest
Service’s decisions to issue dozens of permits and/or AOIs.1
B. The Forest Service’s Discretion to Issue Allotment Management Plans
(AMPs)
Plaintiffs argue the Forest Service’s implementing regulations require it to prepare and
update AMPs, and by failing to do so, the Forest Service violated the APA because it unlawfully
withheld or delayed required agency action. Pls. Objections [489] at 29–30. Plaintiffs do not
dispute that 43 U.S.C. § 1752 gives the Secretary broad discretion on whether and when to
prepare AMPs. See 43 U.S.C. § 1752(d) (“All permits and leases for domestic livestock grazing
issued pursuant to this section may incorporate an allotment management plan developed by the
Secretary concerned.”); id. § 1752(i) (specifying that the Secretary has discretion for the
“priority and timing” of environmental analyses related to “a grazing allotment, permit, or
lease”). But Plaintiffs argue that the Forest Service relinquished that discretion by promulgating
1
Separately, I note the parties’ concern that the F&R refers to a “grazing program.” To clarify, this
opinion only addresses the Forest Service’s specific agency actions as challenged by Plaintiffs, not a
“grazing program” as occasionally mentioned in the F&R.
4 – OPINION AND ORDER
36 C.F.R. § 222.2(b). See 36 C.F.R. § 222.2(b) (“Each allotment will be analyzed, . . . and an
allotment management plan developed.”). The F&R concludes that Plaintiffs’ AMP challenges
are not justiciable, because 43 U.S.C. § 1752 gives the Forest Service ultimate discretion on
AMPs. F&R [485] at 15.
I agree with the F&R’s recommendation on this issue. I write separately to note that at
oral argument, Federal Defendants persuasively argued that the Court should defer under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Auer
v. Robbins, 519 U.S. 452 (1997), to the Forest Service’s reasonable interpretations of the
governing statute and related regulations. See 43 U.S.C. § 1752; 36 C.F.R. § 222.2(b). The Forest
Service interprets 43 U.S.C. § 1752 and 36 C.F.R. § 222.2(b) to give the agency discretion about
when and how to adopt AMPs. In light of 43 U.S.C. § 1752, I conclude that the Forest Service’s
interpretation of 36 C.F.R. § 222.2(b) is reasonable. See Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 155 (2012) (“Auer ordinarily calls for deference to an agency’s
interpretation of its own ambiguous regulation, even when that interpretation is advanced in a
legal brief.”).
II.
NFMA Claims
Plaintiffs claim the Forest Service violated NFMA by issuing grazing permits and AOIs
“without evaluating and describing how the authorized grazing is consistent with” narrative
Forest Plan standards, INFISH Standard GM-1, and the Amendment 29 bank stability standards.
Mot. Summ. J. [416] at 31. The F&R concludes that the Forest Service did not act arbitrarily or
capriciously under the APA by allowing grazing on the seven allotments at issue in this case.
F&R [485] at 16–27.
5 – OPINION AND ORDER
I agree with the F&R’s recommendations on this issue. I write separately to address
Plaintiffs’ assertion at oral argument that this case is akin to Motor Vehicle Manufacturers Ass’n
of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).
The Supreme Court held in Motor Vehicle Manufacturers that “an agency must cogently explain
why it has exercised its discretion in a given manner,” and that “an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” Id. at 48, 50. The Federal
Defendants countered that the Forest Service adequately explained why it made the decisions it
did. They argued that this case is instead similar to The Lands Council v. McNair, under which
courts must “defer to an agency’s determination in an area involving a high level of technical
expertise.” The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008). overruled in part
on other grounds by Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008).
The Federal Defendants’ argument is persuasive. A review of the administrative record
reflects that under the standard set forth in Motor Vehicle Manufacturers, the Forest Service
adequately considered relevant data and went to some length to justify its choices. See 463 U.S.
at 48, 50. The record shows the Forest Service used several data sets for particular reasons: it
used habitat indicator data to evaluate conditions of the bull trout habitat annually prior to
issuing permits and AOIs, and PacFish/InFish Effectiveness Monitoring Program (PIBO) data to
measure general trends. See 4SPAR [408] at 2796 (noting that “the livestock grazing end-point
indicators were developed to meet PACFISH/INFISH grazing standards and guidelines,
enclosure B of the LMRP and water quality BMPs.”); PAR [119] at 5807 (effective monitoring
plan developed to “assess whether management direction, implemented through [PIBO] is
effective in maintaining or improving aquatic and riparian conditions at both the landscape and
watershed scales on federal lands”). I agree with the F&R that these choices reflect the Forest
6 – OPINION AND ORDER
Service’s reasoned “determination[s] in an area involving a high level of technical expertise.”
See Lands Council, 537 F.3d at 993 (internal quotation marks omitted).
III.
Conclusion
Upon review, I agree with Judge Papak’s recommendations and I ADOPT the F&R [485]
as my own opinion. Plaintiffs’ Motion for Summary Judgment [416] is DENIED, Federal
Defendants’ Amended Motion for Summary Judgment [482] is GRANTED, IntervenorDefendants’ Corrected Cross-Motion for Summary Judgment [459] is GRANTED, and this
action is dismissed with prejudice.
IT IS SO ORDERED.
16
DATED this ____ day of April, 2018.
/s/ Michael W. Mosman
_______________________
MICHAEL W. MOSMAN
Chief United States District Judge
7 – OPINION AND ORDER
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