Oregon Natural Desert Association v. United States Forest Service ( 2006 )

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, Acting Assistant Attorney General; Karen
J. Immergut, United States Attorney; Stephen J. Odell, Assis-
tant United States Attorney; Robert H. Oakley and Jennifer J.
Scheller, U.S. Department of Justice, Environment and Natu-
ral Resources Division, Washington, D.C., for the defendants-
appellees.
Karen Budd-Falen and Hertha L. Lund, Budd-Falen Law
Offices, LLC, Cheyenne, Wyoming, for the intervenors-
defendants-appellees.
OREGON NATURAL DESERT v. USFS 11835
OPINION
PAEZ, Circuit Judge:
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 pur-
poses 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 determi-
nation of the merits of plaintiffs’ claims.1
I.
The Federal Land Policy and Management Act of 1976
(“FLPMA”), 90 Stat. 2744 (codified at 43 U.S.C. §§ 1701-
1784), authorizes the Forest Service to allow livestock graz-
ing on specified allotments2 within a national forest. The For-
est Service authorizes and manages grazing on specified
allotments by issuing (1) a grazing permit pursuant to 43
1
We review de novo the district court’s determination that it lacked sub-
ject matter jurisdiction. Hambleton Bros. Lumber Co. v. Balkin Enters.,
Inc., 397 F.3d 1217, 1226 (9th Cir. 2005). We therefore do not defer to
the agency’s position on whether agency action is final. See Abramowitz
v. EPA, 832 F.2d 1071, 1075 (9th Cir. 1987), superseded by statute on
other grounds as recognized in Hall v. EPA, 263 F.3d 926, 937 (9th Cir.
2001).
2
An allotment is a “designated area of land available for livestock graz-
ing.” 36 C.F.R. § 222.1(b)(1). The administrative record reflects that the
Forest Service divides an allotment into several smaller “units,” or pas-
tures.
11836 OREGON NATURAL DESERT v. USFS
U.S.C. § 1752(a) and 36 C.F.R. § 222; (2) an Allotment Man-
agement Plan (“AMP”) pursuant to 43 U.S.C. § 1752(d) and
36 C.F.R. § 222.1(b); and (3) AOIs.3
A grazing permit is a “document authorizing livestock to
use National Forest System or other lands under Forest Ser-
vice control for the purpose of livestock production.” 36
C.F.R. § 222.1(b)(5); 43 U.S.C. § 1702(p). A permit grants a
license to graze and establishes: (1) the number, (2) kind, (3)
and class of livestock, (4) the allotment to be grazed, and (5)
the period of use. See 36 C.F.R. §§ 222.1-222.4; 43 U.S.C.
§ 1752. The Forest Service sets these parameters based on its
assessment of the land’s ability to sustain average levels of
livestock use according to the applicable land and resource
management plan.4 See, e.g., 36 C.F.R. § 222.3(c)(1); Forest
Service Handbook (“FSH”) 2209.13, § 94.2. The Forest Ser-
vice generally issues permits for ten-year periods. See 36
C.F.R. § 222.3(c)(1).
The Forest Service is also required to prepare an AMP for
each allotment. An AMP is “a document that specifies the
program of action . . . to meet [, inter alia,] the multiple-use,
sustained yield, economic, and other needs and objectives as
3
Prior to 2004, the Forest Service called AOIs “annual operating plans.”
We refer to these documents as AOIs regardless of whether the Forest Ser-
vice issued the document prior to the change in name.
4
“The [Forest] Service makes forest management decisions by develop-
ing a Land and Resource Management Plan (“forest plan”) for each unit
of the National Forest System . . . . The [National Forest Management Act
of 1976 (“NFMA”), 90 Stat. 2949, 16 U.S.C. §§ 1600-1614] and [S]ervice
regulations [see 36 C.F.R. § 219.10] require that proposed actions be con-
sistent with the Forest Plan. 16 U.S.C. § 1604(I). In developing a forest
plan, the Service is required [inter alia] to ‘provide for multiple use and
sustained yield of the products and services obtained therefrom in accor-
dance with [the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C.
§§ 528-531] and, in particular, include coordination of outdoor recreation,
range, timber, watershed, wildlife and fish, and wilderness [ ].’ 16 U.S.C.
§ 1604(e)(1).” Forest Guardians v. USFS, 329 F.3d 1089, 1092-93 (9th
Cir. 2003).
OREGON NATURAL DESERT v. USFS 11837
determined for the lands involved” and includes provisions
relating to grazing objectives “as may be prescribed by the
[Forest Service], consistent with applicable law,” 36 C.F.R.
§ 222.1(b); 43 U.S.C. §§ 1702(k)(1), 1752(d), including the
applicable forest plan. While a forest plan is an overarching
land management directive for an entire forest-wide unit
within the National Forest System, the AMP is a land man-
agement directive for a specific allotment within a national
forest that the Forest Service has designated for livestock
grazing. See Wilderness Soc’y. v. Thomas, 188 F.3d 1130,
1133 (9th Cir. 1999) (describing AMPs as “site-specific”).
The AMP must be consistent with the applicable forest plan.
See 16 U.S.C. § 1604(I); Neighbors of Cuddy Mountain v.
Alexander, 303 F.3d 1059, 1062 (9th Cir. 2002).
Finally, as reflected in the administrative record, prior to
the beginning of a grazing season, the Forest Service issues
an AOI to grazing permit holders. Whereas the AMP relates
the directives of the applicable forest plan to the individual
grazing allotment, and the grazing permit sets grazing param-
eters through a ten-year period, the AOI annually conveys
these more long-term directives into instructions to the per-
mittee for annual operations. See, e.g., Forest Service Manual
§ 2212.3 (stating that the AOI “implements management deci-
sions of the [AMP]”) (chapter currently “in reserve,” but in
effect at time of district court’s order dismissing ONDA’s
claims). The AOI consists of a signed agreement between the
Forest Service and permit holder. According to its explicit
terms, the AOI is made part of the grazing permit and governs
the permit holder’s grazing operations for the next year.5
5
The administrative record contains a number of pre-2004 AOIs that
include a provision stating: “[t]his Annual Operating Instruction is made
part of Part 3 of your Term Grazing Permit” and “[t]his signed AOI is
your agreement to comply with the following provisions, as well as other
instructions given to you, your employees, and contractors by the district
ranger.” It appears from the record that the Forest Service eliminated these
statements from the 2004 AOIs.
11838 OREGON NATURAL DESERT v. USFS
Because an AOI is issued annually, it is responsive to con-
ditions that the Forest Service could not or may not have
anticipated and planned for in the AMP or grazing permit,
such as drought conditions, timing and duration of rainfall
over the grazing season, success or failure of habitat restora-
tion projects, water quality, or degree of risk to threatened or
endangered species affected by grazing. See, e.g., Anchustegui
v. Dep’t of Agric., 257 F.3d 1124, 1126 (9th Cir. 2001)
(describing contents of an AOI that imposed reduced utiliza-
tion levels in response to changed pasture conditions). With
this contextual background in mind, we review briefly the
statutory basis for ONDA’s claims and the district court’s
jurisdictional ruling.
II.
In 1988, Congress designated stretches of the North Fork
Malheur and Malheur Rivers in the Blue Mountains of eastern
Oregon as wild and scenic river corridors under the Wild and
Scenic Rivers Act of 1968 (“WSRA”), 82 Stat. 907 (codified
at 16 U.S.C. § 1274(a)(83), (89)). See Omnibus Oregon Wild
and Scenic Rivers Act of 1988, 102 Stat. 2782. The 1990
Malheur National Forest Land and Resource Management
Plan (“Malheur Forest Plan” or “Forest Plan”) designates
more than 10,000 acres of national forest land on and adjacent
to the North Fork Malheur and Malheur River corridors as
livestock grazing allotments. In this action, Oregon Natural
Desert Association and Center for Biological Diversity (col-
lectively, “ONDA”) challenge the Forest Service’s decisions
related to its management of livestock grazing on six of those
allotments from 2000 to 2004.6 In its complaint, ONDA
6
With respect to the allotments at issue in this case, portions of the
Bluebucket and Dollar Basin/Star Glade allotments fall within the Mal-
heur Wild and Scenic River corridor. Portions of the Flag Prairie, North
Fork, Ott, and Spring Creek allotments fall within the North Fork Malheur
Scenic River corridor. The allotments are distributed over roughly forty
miles of the protected river corridors.
OREGON NATURAL DESERT v. USFS 11839
alleges that the Forest Service acted arbitrarily and capri-
ciously in violation of 5 U.S.C. § 706(2)(A) by annually issu-
ing AOIs to grazing permit holders for pastures within the
protected riparian stretches of the North Fork Malheur and
Malheur Rivers. ONDA alleges that the AOIs contain terms
that violate the Forest Service’s mandatory and non-
discretionary duties under the WSRA, the National Forest
Management Act of 1976 (“NFMA”), 90 Stat. 2949 (codified
at 16 U.S.C. §§ 1600-1614), the National Environmental Pol-
icy Act of 1969 (“NEPA”), 83 Stat. 852 (codified at 42 U.S.C.
§ 4321 et seq.), as well as its own regulations.
In response to ONDA’s action,7 the Forest Service and the
intervenors moved to dismiss for lack of jurisdiction because
the AOIs at issue did not constitute final agency actions
reviewable under 5 U.S.C. § 706(2)(A). See ONDA v. USFS,
312 F. Supp. 2d 1337, 1341-43 (D. Or. 2004). The district
court initially rejected their argument and ruled that under
Bennett v. Spear, 520 U.S. 154 (1997), the AOIs were the cul-
mination of a process that resulted in final agency action
within the meaning of § 704. See ONDA, 312 F. Supp. 2d at
1343. The court therefore concluded that ONDA’s claims
were ripe for judicial review under § 706(2)(A). Id.
Following denial of ONDA’s motion for a preliminary
injunction, see ONDA v. USFS, 2004 WL 1293909 (D. Or.,
June 10, 2004), the parties filed cross-motions for summary
judgment and the case was transferred to a different district
judge. The district court denied ONDA’s motion and granted
in part and denied in part the Forest Service’s cross-motion
for summary judgment. Although the district court determined
that the Forest Service’s issuance of an AOI constituted an
7
After ONDA filed its complaint, Robertson Ranch and the Oregon Cat-
tlemen’s Association (“OCA”) were granted leave to intervene as defen-
dants. Because the intervenors assert the same jurisdictional arguments as
the Forest Service, our reference to the Forest Service encompasses the
intervenor-defendants, unless otherwise noted.
11840 OREGON NATURAL DESERT v. USFS
agency action, it concluded that the agency’s action was not
final and therefore not subject to judicial review under
§ 706(2)(A). The court also concluded that it lacked jurisdic-
tion to review ONDA’s alternative WSRA claims under
§ 706(1) of the APA. Accordingly, the district court dismissed
ONDA’s claims without prejudice. ONDA appeals the juris-
dictional ruling related to its claims under § 706(2).
III.
[1] Because the substantive statutes under which ONDA
seeks relief do not provide for a private right of action,
ONDA challenges the AOIs under the judicial review provi-
sions of the APA. See 5 U.S.C. § 702-706; Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 882 (1990). To obtain judicial
review under the APA, ONDA must challenge a final agency
action. See 5 U.S.C. § 704; Lujan, 497 U.S. at 882; Ukiah
Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 n.1 (9th Cir.
1990) (“finality is . . . a jurisdictional requirement”). For an
agency action to be final, the action must (1) “mark the con-
summation of the agency’s decisionmaking process” and (2)
“be one by which rights or obligations have been determined,
or from which legal consequences will flow.” Bennett, 520
U.S. at 178 (internal quotation marks omitted). “ ‘[T]he core
question is whether the agency has completed its decision-
making process, and whether the result of that process is one
that will directly affect the parties.’ ” Indus. Customers of NW
Utils. v. Bonneville Power Admin., 408 F.3d 638, 646 (9th
Cir. 2005) (quoting Franklin v. Massachusetts, 505 U.S. 788,
797 (1992)).
In determining whether an agency’s action is final, we look
to 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.’ ”
Indus. Customers of NW Utils, 408 F.3d at 646 (quoting Cal.
Dep’t of Water Res. v. FERC, 341 F.3d 906, 909 (9th Cir.
OREGON NATURAL DESERT v. USFS 11841
2003)) (alteration in original); see also Ukiah Valley Med.
Ctr., 911 F.3d at 264 (quoting FTC v. Standard Oil Co., 449
U.S. 232, 239 (1980)). We focus on the practical and legal
effects of the agency action: “[T]he ‘finality element must be
interpreted in a pragmatic and flexible manner.’ ” Or. Natural
Res. Council v. Harrell, 52 F.3d 1499, 1504 (9th Cir. 1995)
(quoting Dietary Supplemental Coal., Inc. v. Sullivan, 978
F.2d 560 (9th Cir. 1992)); Cal. Dep’t of Educ. v. Bennett, 833
F.2d 827, 833 (9th Cir. 1987) (“The requirement of finality is
interpreted pragmatically.”).
The Forest Service argues that an AOI is not a final agency
action because the document merely implements the Forest
Service’s other grazing decisions as found in the Forest Plan
or grazing permit. Moreover, the Forest Service argues that an
AOI not only lacks finality, but also does not constitute
“agency action” under the APA as interpreted by Norton v.
Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55,
62 (2004), because it is not a rule, order, license, sanction, or
relief. On both bases, the Forest Service asserts that the dis-
trict court lacks subject matter jurisdiction over ONDA’s
claims. We are not persuaded by the Forest Service’s argu-
ments. Because an AOI is properly viewed as a license within
the meaning of 5 U.S.C. § 551(13), we agree with the district
court that an AOI represents agency action. We disagree,
however, with the district court’s determination that issuance
of an AOI does not represent final agency action. As we
explain below, issuance of an AOI satisfies the Bennett test
for finality. It is the consummation of a process that sets the
parameters for the upcoming grazing season and it imposes
legal consequences on the permit holder. Thus, we conclude
that ONDA’s claims are ripe and that subject matter jurisdic-
tion exists under the APA.
A. Agency Action
The Forest Service points to SUWA to support its argument
that an AOI is not an agency action under the APA because,
11842 OREGON NATURAL DESERT v. USFS
as the Court noted in that case, “agency action is limited to
the specific categories defined by the APA.” SUWA, 542 U.S.
at 55. The Court rejected several environmental groups’
claims that the Bureau of Land Management (“BLM”) failed
to protect certain of Utah’s roadless Wilderness Study Areas
from off-road vehicle use in violation of the agency’s duties
under FLPMA and NEPA. 542 U.S. at 59-60. In contrast to
the “abuse of discretion” claims ONDA pursues under
§ 706(2), the environmental groups in SUWA had pursued
their claims under § 706(1), which provides jurisdiction to
“compel agency action unlawfully withheld or unreasonably
delayed.” Id. at 61.
In the Court’s analysis of whether the environmental
groups in SUWA had properly alleged the BLM’s “failure to
act,” the Court explained the APA’s meaning of agency action
as defined in § 551. Id. at 62; see also 5 U.S.C. § 701(b)(2)
(“For the purpose of this chapter . . . ‘agency action’ ha[s] the
meanin[g] given . . . by section 551 of this title.”). The Court
noted that § 551(13) “begins” its definition of agency action
with a list of “categories of decisions made or outcomes
implemented by an agency—‘agency rule, order, license,
sanction [or] relief,’ ” which the Court described as “circum-
scribed, discrete agency actions.” SUWA, 542 U.S. at 62
(quoting 5 U.S.C. § 551(13)) (alteration in original). The
Court then noted that, under § 551(13), agency action also
includes “the equivalent or denial thereof [i.e., of an agency
rule, order, license, sanction, or relief], or failure to act.” Id.
The Court concluded that although “the equivalent thereof” is
not defined in the APA, an “ ‘equivalent . . . thereof’ must
also be discrete.” Id.
[2] The Forest Service’s argument here fails because, even
under § 551(13)’s categorical definition of agency action, an
AOI is an agency action. A grazing permit is a license,
Anchustegui, 257 F.3d at 1128, and the issuance of a grazing
permit is an agency action under the APA. See 5 U.S.C.
§ 551(13); Idaho Watersheds Project v. Hahn, 307 F.3d 815,
OREGON NATURAL DESERT v. USFS 11843
828 (9th Cir. 2002). Under the APA, a license “includes the
whole or a part of an agency permit . . . or other form of per-
mission.” 5 U.S.C. § 551(8) (emphasis added). As discussed
above, the Forest Service itself has repeatedly included a pro-
vision in the AOIs that the AOI “is made part of Part 3 of
[the] Term Grazing Permit.” An AOI is therefore properly
understood to be a license for purposes of determining
whether it is an agency action under the APA. Thus, we agree
with the district court that issuance of an AOI is an agency
action under § 551(13) of the APA.
B. Final Agency Action
1. Consummation
[3] We next turn to whether issuance of an AOI satisfies
the Bennett test for final agency action under the APA. To
meet the first prong of the Bennett test, the challenged agency
action must represent the consummation of the agency’s deci-
sionmaking process.8 520 U.S. at 178. The action “must not
be of a merely tentative or interlocutory nature.” Id. Rather,
we look to see whether the agency “ ‘has rendered its last
word on the matter’ ” to determine whether an action is final
and is ripe for judicial review. Whitman v. Am. Trucking
Ass’n, 531 U.S. 457, 478 (2001) (quoting Harrison v. PPG
Indus., Inc., 446 U.S. 578, 586 (1980)). The administrative
record establishes that an AOI is the Forest Service’s “last
word” authorizing an individual permit holder to graze each
season.
[4] An AOI sets forth the Forest Service’s annual determi-
nations regarding how much grazing particular units (pas-
tures) within a given allotment can sustain in the upcoming
season. As demonstrated by the record, in establishing the
terms of an AOI, the Forest Service considers such matters as
8
The district court did not make an explicit holding on Bennett’s first
requirement.
11844 OREGON NATURAL DESERT v. USFS
changes in pasture conditions, new scientific information,
new rules that have been adopted during the previous season,
or the extent of the permit holder’s compliance with the previ-
ous year’s AOI. The AOI is a critical instrument in the Forest
Service’s regulation of grazing on national forest lands.
Indeed, when the Forest Service takes a site-specific action
within the Malheur Forest, such as issuing a grazing permit
for an allotment within the forest, the Forest Service’s actions
must comply with the standards and conditions set out in the
Malheur Forest Plan as well as applicable federal environ-
mental law. See, e.g., 42 U.S.C. § 4332(2)(C); 16 U.S.C.
§ 1536(a)(2). Although the Forest Service generally imple-
ments Forest Plan standards on designated grazing allotments
with an AMP, none of the allotments involved in this litiga-
tion has a current AMP.9
Where an AMP does not exist for an allotment, the Forest
Service has integrated the Forest Plan’s terms directly into the
grazing permits each year through the AOI. For example, in
1996, the Forest Service issued three grazing permits for dif-
ferent pastures within the Bluebucket Allotment. The permits
identify the general statutory and regulatory framework that
governs the actions of the individual permit holders so that
livestock grazing will be consistent with the Malheur Forest
Plan. Part III of each grazing permit provides: “prior to com-
pletion and implementation of the scheduled individual
AMP’s, we will be working with you through the Annual
Operating Plans [i.e., AOIs] to bring management of the Blue-
bucket Allotment into consistency with the terms of the Mal-
heur [Forest Plan].” Thus, here, the Forest Service directly
9
Other than the Bluebucket Allotment, for which the Forest Service pre-
pared an AMP over twenty years ago, none of the allotments at issue in
this appeal has an AMP. Each permit states that the Forest Plan has
“scheduled” an AMP; however, the record does not reflect that the Forest
Service has complied with these schedules. In one case, the Dollar Basin/
Star Glade Allotment, the Forest Service has not completed an allotment
analysis—a step preceding development of an AMP—since 1965.
OREGON NATURAL DESERT v. USFS 11845
“put[s] the [allotment management] decision[s] into effect”
through an AOI. Idaho Watersheds Project, 307 F.3d at 828.
[5] In Idaho Watersheds Project, we held that the BLM’s
issuance of a grazing permit was a final agency action
because “the initial agency decisionmaker arrived at a defini-
tive position and put the decision into effect by issuing the . . .
permits.” Id. Here, as in Idaho Watershed Project, the Forest
Service arrived at a definitive position to allow grazing in the
Malheur National Forest and put that decision into effect by
issuing grazing permits. In issuing the permits, the Forest Ser-
vice reserved the right to impose additional terms and condi-
tions in light of its annual assessment of changed pasture
conditions, new scientific information, new rules, and past
compliance by the permit holder. As noted, the Forest Service
puts these additional modifications or restrictions into effect
by issuing an AOI. As the record reflects, when viewed in its
proper context, the AOI represents the consummation of the
Forest Service’s annual decisionmaking process regarding
management of grazing allotments.10
[6] Moreover, after the Forest Service issues an AOI, the
grazing permit holder is authorized to begin the new grazing
season under its terms and conditions.11 Because the AOI is
the only substantive document in the annual application pro-
10
To suggest that the AOIs are merely part of the Forest Service’s “day-
to-day operation,” see Dissenting Opinion at 11857, relegates them to an
insignificant role in the Forest Service’s management of the grazing lands
under its control. In light of the substantive legal constraints imposed by
the AOIs, we are not persuaded by the dissent’s argument.
11
As documented in the administrative record, every spring, the Forest
Service initiates consultation with the permit holder regarding the issuance
of the AOI for the forthcoming grazing season. At the end of this consulta-
tion process, the Forest Service sets the terms and conditions for grazing
in any particular allotment. Without the AOI, the permit holder would not
know where within the allotment to graze, how many head to graze when,
or any specific conservation measures that the Forest Service deemed war-
ranted for the upcoming season.
11846 OREGON NATURAL DESERT v. USFS
cess, it functions to do more than make minor adjustments in
the grazing permit as the Forest Service asserts; pragmati-
cally, it functions to start the grazing season. In short, the AOI
is the Forest Service’s “last word” before the permit holders
begin grazing their livestock. Whitman, 531 U.S. at 478; cf.
Ecology Ctr., Inc. v. USFS, 192 F.3d 922, 925 (9th Cir. 1999)
(holding that monitoring and reporting under NFMA were not
agency actions that consummated the Forest Service’s deci-
sionmaking process because they were “only steps leading to
an agency decision, rather than the final action itself”).
[7] The Forest Service does not contest that an AOI is the
Forest Service’s “last word” before a permit holder begins
grazing his livestock. Rather, the Forest Service asserts that
an AOI merely implements other decisions that the Forest
Service has already made (i.e., the Forest Plan, AMPs, and
grazing permits), and therefore is not, in itself, a final agency
action. This argument, however, mis-characterizes the role of
an AOI in the Forest Service’s management of the public
range. “It is the effect of the action and not its label that must
be considered.” Abramowitz, 832 F.2d at 1075. To this end,
“finality is to be interpreted ‘in a pragmatic way.’ ” Oregon
v. Ashcroft, 368 F.3d 1118, 1147 (9th Cir. 2004) (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 149-50 (1967)). It is
correct, as the Forest Service argues, that, in obtaining a graz-
ing permit, the applicant agrees to comply with the Forest
Plan and other applicable federal environmental requirements.
However, as the administrative record demonstrates, an AOI
is the only instrument that instructs the permit holder how
those standards will affect his grazing operations during the
upcoming season. Although the permit holder has already
agreed to abide by applicable federal environmental law in
signing the term grazing permit, that acknowledgment does
not diminish the force of an AOI as consummating the Forest
Service’s annual decisionmaking process. In sum, the issu-
ance of an AOI represents the consummation of the Forest
Service’s determination regarding the extent, limitation, and
OREGON NATURAL DESERT v. USFS 11847
other restrictions on a permit holder’s right to graze his live-
stock under the terms of the permit.12
2. Legal Effect
[8] The district court interpreted Bennett to hold that an
12
The dissent cites Montana Wilderness Association, Inc. v. U.S. Forest
Service and Chemical Weapons in support of its pragmatic assessment that
the AOIs merely implement an earlier final decision. Dissenting Opinion
at 11856. In Montana Wilderness, we held that trail maintenance did not
constitute final agency action for purposes of judicial review under the
APA. 314 F.3d 1146, 1150 (9th Cir. 2003), vacated on other grounds by
SUWA. In rejecting plaintiffs’ claims under the Montana Wilderness Study
Act, Pub. No. 95-150, 91 Stat. 1243 (1977), we noted that the Forest Ser-
vice’s trail maintenance activities “implement[ed] its trail management
and forest plans adopted for the study area.” Id. We concluded that “the
maintenance of trails designated by those plans [was] merely an interim
aspect of the planning process, not the consummation of it.” Id. Here, the
AOIs are not part of an interim planning process. Instead, as even the dis-
sent seems to acknowledge, the AOIs represent the consummation of a
process, which results in the imposition of enforceable rights and obliga-
tions on the permittee.
In Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army,
111 F.3d 1485 (10th Cir. 1997), the plaintiffs challenged the Defense
Department’s plan to destroy chemical weapons by incinerating them. The
Tenth Circuit held that the plaintiffs’ maximum protection claim was not
ripe for judicial review under the APA because the two trial burns that
were at issue did not constitute final agency action. In light of the Depart-
ment’s prior final decision to incinerate the chemical weapons, the court
concluded that the later trial burns merely implemented the earlier final
decision. Notably, the plaintiffs were unable to provide any information
demonstrating that the Department had revisited its plan to incinerate the
weapons.
The discrete circumstances in Chemical Weapons differ considerably
from the annual process through which the Forest Service issues AOIs, as
does the substantive nature of the AOIs compared to the destruction of
weapons at issue in that case. The issuance of an AOI is not a discrete
event designed to test the feasibility of a course of action periodically
adopted by a governmental agency, but rather is a final decision that sets
the annual parameters of the grazing program and which imposes legal
consequences on permittees.
11848 OREGON NATURAL DESERT v. USFS
agency action is not a final agency action unless it “alter[s]
the legal regime to which the action agency is subject.” With
this understanding, the district court concluded that an AOI is
not a final agency action because it does not alter the legal
regime to which the Forest Service is subject. The district
court’s understanding of Bennett’s second prong is, however,
not supported by Bennett. In Bennett, the Court held that an
agency action that consummated the agency’s decisionmaking
process (Bennett’s first requirement) would be final if the
action is one “by which rights or obligations have been deter-
mined, or from which legal consequences will flow.” 520
U.S. at 178 (internal quotation marks omitted) (emphasis
added). It then held, on the facts of that case, that this second
requirement was met because the challenged action altered the
legal regime to which the Secretary of Interior was subject. Id.
The Court did not, however, hold that alteration of the federal
agency’s legal regime was the only way in which an agency
action could satisfy the second finality requirement.
[9] Courts have consistently interpreted Bennett to provide
several avenues for meeting the second finality requirement.
We have held that “[t]he general rule is that administrative
orders are not final and reviewable ‘unless and until they
impose an obligation, deny a right, or fix some legal relation-
ship as a consummation of the administrative process.’ ”
Ukiah Valley Med. Ctr., 911 F.2d at 264 (quoting Chi. & S.
Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
(1948)) (emphasis added). The legal relationship need not
alter the legal regime to which the involved federal agency is
subject. See, e.g., Alaska Dep’t of Envtl. Conservation v. EPA,
540 U.S. 461, 482-83 (2004) (holding that EPA’s order under
the Clean Air Act prohibiting the Alaskan Department of
Environment from issuing permits to a zinc mining company
was a final agency action because the order effectively halted
construction of the mine through the threat of civil and crimi-
nal penalties, despite lack of alteration of EPA’s legal
regime); Cal. Dep’t of Educ., 833 F.2d at 833 (holding that
the Department of Education’s letter informing state that
OREGON NATURAL DESERT v. USFS 11849
interest would accrue was a final agency action despite lack
of alteration of the Department’s legal regime); Idaho Water-
sheds Project, 307 F.3d at 828 (holding that BLM’s issuance
of grazing permits constituted final agency action despite lack
of alteration of BLM’s legal regime). These cases demon-
strate that Bennett’s second requirement can be met through
different kinds of agency actions, not only one that alters an
agency’s legal regime.
Indeed, we have said that an agency action may be final if
it has a “ ‘direct and immediate . . . effect on the day-to-day
business’ of the subject party.” Ukiah Valley Med. Ctr., 911
F.2d at 264 (quoting Standard Oil, 449 U.S. at 239). We con-
sider “whether the [action] has the status of law or compara-
ble legal force, and whether immediate compliance with its
terms is expected.” Id. In light of these rules, we turn to
whether an AOI has any legal effect that would qualify it as
a final agency action under Bennett’s second finality require-
ment.
In Anchustegui, the plaintiff challenged the government’s
attempt to impose sanctions for his failure to comply with
restrictions on cattle grazing delineated in an AOI. 257 F.3d
at 1126. We noted, as described above, that the Forest Service
uses the AOI to set annual grazing specifications for the per-
mit holder. Notably, we recognized that an AOI contains “di-
rectives” that, if not followed, can trigger the Forest Service
to institute agency proceedings against the subject grazing
permittee. Id. at 1126-28. While Anchustegui does not princi-
pally concern the function of an AOI, it aids our understand-
ing that an AOI carries legal consequences. The
administrative record in this appeal also supports this conclu-
sion.
11850 OREGON NATURAL DESERT v. USFS
a. Notices of Non-Compliance and Threatened
Permit Action Against Howard and Butler
Ranches
If a permittee does not comply with the directives in the
AOI, the Forest Service can issue a Notice of Non-
Compliance (NONC) to the permit holder. See Anchustegui,
257 F.3d at 1129 (explaining administrative notice process
under 5 U.S.C. § 558(b),(c), with which Forest Service must
comply before taking “permit action”). As the record demon-
strates, the Forest Service issued a NONC to the Howard
Ranch on July 14, 2004. Howard Ranch obtained a grazing
permit for pastures within the Bluebucket Allotment in 1996.
The 2004 AOI recommended that the Ranch monitor certain
“move triggers” to increase the likelihood of moving its live-
stock before reaching utilization limits. It also stated a reduc-
tion in Howard Ranch’s 2004 “Allowable Use Standards”
based on the allotment’s classification in the Malheur Forest
Plan and consultation requirements under the Endangered
Species Act of 1973 (“ESA”), 87 Stat. 884 (codified at 16
U.S.C. §§ 1531-43). The NONC informed Howard Ranch of
its failure to meet conditions in both its grazing permit and its
AOI, including exceeding utilization standards and failing to
follow the 2004 AOI grazing schedule for pasture moves.13
On January 26, 2005, the Forest Service notified Howard
Ranch that it decided to take “permit action” by suspending
25% of the Ranch’s permitted head of livestock, as warned in
13
The NONC stated:
Your Term Grazing Permit # 01663, signed and dated by you,
states that you will follow annual instructions of the Forest Offi-
cer. You have failed to comply with your permit . . . and your
2004 AOI (excess use in violation of Malheur Forest Plan utiliza-
tion standards and failure to follow pasture move dates in AOI
without advance approval from the Forest). Based on the viola-
tions of your Term Grazing Permit, I am considering suspending
25% of your permitted numbers and/or suspending your season
for two years.
OREGON NATURAL DESERT v. USFS 11851
the NONC. The notification identified violations of the AOI
and imposed a modification of the underlying grazing permit
as the appropriate sanction for the violation. See also 36
C.F.R. § 222.4(a)(4) (authorizing Forest Service to cancel or
suspend grazing permit if permittee does not comply with
provisions and requirements of permit or governing regula-
tions).
[10] Similarly, in a separate NONC to Butler Ranch for
violation of the 2004 North Fork Allotment AOI, the Forest
Service stated: “Failure to follow the direction set forth in the
Annual Operating Instructions and my August 6 letter, and
exceeding allowable use standards is a violation of . . . the
terms and conditions set forth in your Term Grazing Permit,”
and threatened similar permit action to that taken against
Howard Ranch. The Butler Ranch NONC cited permit sec-
tions that authorize the Forest Service to cancel or suspend a
permit for failure to comply with, inter alia, the allotment
management plan. As with each grazing permit involved in
this appeal, this permit covered an allotment which did not
have an operative allotment management plan. Thus, the per-
mit specified that the Forest Service would enforce the Forest
Plan standards, as adjusted annually with range conditions,
via the AOI. The Howard and Butler Ranches’ NONCs dem-
onstrate the AOI’s legal effect: failure to comply with the
AOI’s substantive terms can result in administrative sanctions
against the permit holder.
[11] The Forest Service argues that because the sanction for
an AOI violation is against the permit, the AOI has no legal
effect. However, as the district court noted in its ruling deny-
ing the Forest Service’s motion to dismiss, “[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.” ONDA, 312 F. Supp. 2d at 1343. Rather, that
an AOI violation can prompt the Forest Service to take
enforcement action against the non-complying permittee is a
show of the AOI’s “legal force” and the Forest Service’s
11852 OREGON NATURAL DESERT v. USFS
expectation of “immediate compliance with its terms.” Ukiah
Valley Med. Ctr., 911 F.2d at 264.
b. AOI Used to Impose Bull Trout ESA Standards
The legal effect of an AOI is also demonstrated by the For-
est Service’s use of the AOI to impose standards promulgated
in the wake of the 1998 listing of the bull trout, a native sal-
monid species, as a threatened species under the ESA. As
documented in the record, the Forest Service issued a grazing
permit to Coombs Ranch for the Dollar Basin/Star Glade
Allotments in 1996. The permit stated that no AMP existed
for the allotments, but that the Forest Service was scheduled
to develop one. It also stated that, in the meantime, the Forest
Service would use the AOI “to bring management of the
[allotments] into consistency with the terms of the Malheur
[Forest Plan].” In 1998, the Fish and Wildlife Service
(“FWS”) listed the bull trout as a threatened species under the
ESA, 63 Federal Reg. 31,647 (June 10, 1998), which trig-
gered the Forest Service’s duty under the ESA to consult with
FWS to insure that any agency action, such as authorization
of grazing, on Forest Service land would not likely jeopardize
the threatened species or its habitat. See 16 U.S.C.
§ 1536(a)(2).
Since the 1998 listing, the relevant AOIs have incorporated
bull trout standards and objectives. For example, the 1998
AOI for Dollar Basin/Star Glade allotments stated,
“[b]eginning this year, standards and habitat objectives for
bull trout are detailed for each unit.” The administrative
record further reflects that AOIs for the other allotments sub-
ject to bull trout standards and objectives also contained simi-
lar statements between 1998-2003. Because the Forest Service
issued most of the grazing permits underlying the AOIs chal-
lenged in this litigation prior to the bull trout listing and there
are no current AMPs for the allotments, the AOI was the For-
est Service’s principal means of imposing the new bull trout
standards on the permit holders from 1998 forward. By
OREGON NATURAL DESERT v. USFS 11853
restricting the rights of and conferring duties on a grazing per-
mit holder to bring the Forest Service’s annual authorization
of grazing into compliance with ESA requirements, the AOI
is the Forest Service’s definitive statement that fixes the legal
relationship between the Forest Service and the permit holder.
The utilization of an AOI in this manner further supports our
conclusion that an AOI is a final agency action. See Idaho
Watersheds Project, 307 F.3d at 828 (“definitive position”);
Ukiah Valley Med. Ctr., 911 F.2d at 264 (“fix some legal rela-
tionship”).
Finally, the Forest Service argues that “[w]ithout the AOIs,
the permittees would still be authorized to graze in accor-
dance with the terms and conditions of the permit.” The For-
est Service’s position is contradicted by the terms of the
grazing permit itself and Forest Service practice. The permit
does not authorize the permit holder to graze continuously for
the permit’s ten-year duration. Rather, the permit authorizes
the permit holder to graze livestock only after the Forest Ser-
vice has approved the permittee’s annual application. In prac-
tice, the Forest Service approves the application in
conjunction with issuance of the AOI. Although the annual
application calls for basic information, it is the AOI that indi-
cates the detailed terms and conditions by which the Forest
Service expects the permit holder to graze his livestock in the
upcoming season. The Forest Service’s argument is not sup-
ported by the terms of the permit or by the record.14
14
OCA similarly argues that “[a]n AOI simply allows the [Forest Ser-
vice] a way to communicate with the permittees on a yearly basis regard-
ing the implementation of the terms and conditions in the term grazing
permit.” However, as the Forest Service itself stated to permittee Coombs
on May 27, 2004, “[t]he AOI is part of your permit . . . It is your responsi-
bility to be familiar with and comply with your operating plan.” This state-
ment, along with the other examples in the administrative record that
highlight the legal significance of the AOI, make clear that the Forest Ser-
vice expects immediate compliance with the AOI. See Indus. Customers
of NW Utils., 408 F.3d at 646 (ruling that finality is indicated when “ ‘im-
mediate compliance [with the terms] is expected’ ” (quoting Cal. Dep’t of
Water Res. v. FERC, 341 F.3d 906, 909 (9th Cir. 2003) (alteration in origi-
nal)). The Forest Service’s “own behavior [ ] belies the claim that its
[annual operating instruction] is not final.” Whitman, 531 U.S. at 479.
11854 OREGON NATURAL DESERT v. USFS
IV.
[12] The record supports the conclusion that an AOI is a
discrete, site-specific action representing the Forest Service’s
last word from which binding obligations flow. These obliga-
tions have a “ ‘direct and immediate . . . effect on the day-to-
day business’ of” the permit holder. Ukiah Valley Med. Ctr.,
911 F.2d at 264 (quoting Standard Oil, 449 U.S. at 239). And,
as the record demonstrates, the AOI imposes substantial and
intricate legal obligations on the permit holder. For these rea-
sons, we hold that an AOI is a final agency action subject to
judicial review under § 706(2)(A) of the APA.
REVERSED AND REMANDED.
FERNANDEZ, Circuit Judge, Dissenting:
As I see it, the final agency action took place when the For-
est 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 possi-
bility of cancellation or suspension. More than that, they pro-
vided 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
1
The issuance of the permits did constitute final agency action. See 5
U.S.C. § 551(13); Idaho Watersheds Project v. Hahn, 307 F.3d 815, 828
(9th Cir. 2002); Anchustegui v. Dep’t of Agric., 257 F.3d 1124, 1129 (9th
Cir. 2001).
OREGON NATURAL DESERT v. USFS 11855
permitees agree with the Forest Service about the proper use
of the land. The AOIs, themselves, are subject to change dur-
ing 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 the
purposes of APA review. The Forest Service claims that the
instructions are mere management tools and amount to docu-
ments which implement the permits themselves. Which one is
correct? The Forest Service. In reaching that conclusion, I
cannot ignore the fact that the Forest Service itself believes
that all it is doing is implementing the permit provisions.
While I recognize that we are not bound by the Forest Ser-
vice’s opinions about what it is doing when it uses AOIs,2 its
“own characterization of its action . . . provides an indication
of the nature of the action.” City of San Diego v. Whitman,
242 F.3d 1097, 1101 n.6 (9th Cir. 2001); see also Blincoe v.
FAA, 37 F.3d 462, 464 (9th Cir. 1994) (per curiam) (agency
characterization not determinative, but relevant).
The Supreme Court has stated that when we make a deci-
sion about whether there is final agency action, we must con-
sider whether an action marks the “consummation of the
agency’s decisionmaking process,” and whether it is “one by
which rights or obligations have been determined, or from
which legal consequences will flow.” Bennett v. Spear, 520
U.S. 154, 177-78, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281
(1997) (internal quotation marks omitted). In that sense, it can
be argued that each AOI, no matter how trivially it affects the
actual grazing of animals under the permit, is final agency
action. Surely, in some sense it is at least a temporary con-
summation of the Forest Service’s process of deciding (in
conjunction with the permitees) what steps should be taken to
2
See Abramowitz v. U.S. EPA, 832 F.2d 1071, 1075 (9th Cir. 1987),
superseded by statute on other grounds as recognized in Hall v. U.S. EPA,
273 F.3d 1146, 1159 (9th Cir. 2001).
11856 OREGON NATURAL DESERT v. USFS
protect the resources while the animals graze upon the land.
Moreover, because a violation of a duly issued AOI can sub-
ject the permitee to charges and perhaps sanctions, there can
be legal consequences if the AOIs are not adhered to.
But to stop there is, I believe, a bit too formalistic because,
in a sense, every step by an agency or by a permitee is the
result of a then final decision and can have legal, as well as
physical, consequences. Thus, a somewhat narrower and more
pragmatic approach is required. See Abbott Labs. v. Gardner,
387 U.S. 136, 149-50, 87 S. Ct. 1507, 1516, 18 L. Ed. 2d 681
(1967), overruled on other grounds by Califano v. Sanders,
430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977).
That approach leads to the implementation concept. How-
ever final an action might look on its face, if it is merely
implementing an earlier truly final determination, it is not
final action for APA review purposes. See Mont. Wilderness
Ass’n, Inc. v. U.S. Forest Serv., 314 F.3d 1146, 1150 (9th Cir.
2003), vacated on other grounds by Blue Ribbon Coal. Inc. v.
Mont. Wilderness Ass’n, Inc., 542 U.S. 917, 124 S. Ct. 2870,
159 L. Ed. 2d 774 (2004); Chem. Weapons Working Group,
Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1494 (10th Cir.
1997); see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
890, 899, 110 S. Ct. 3177, 3189, 3194, 111 L. Ed. 2d 695
(1990) (under APA, courts do not review mere day-to-day
operations of an agency). That, of course, makes a good deal
of sense. Courts are usually dealing with the front end of the
process and ask if the agency has finished its consideration of
a proposed action — like issuing grazing permits. But imple-
mentation is at the back end of the process when an agency
decides what will be done to assure that the action taken is
carried out as contemplated — for example, how will the
grazing permits be utilized so that livestock gets fed and
resources get protected?
In other words, the AOIs are merely a way of conducting
the grazing program that was already authorized and decided
OREGON NATURAL DESERT v. USFS 11857
upon when the permits were issued. The AOIs reflect nothing
more sophisticated or final than the “continuing (and thus
constantly changing) operations”3 of the Forest Service in
reviewing the conditions of the land and its resources, and
assuring that the mandated grazing programs go forward with-
out undue disruption of the resource itself. Whether the deci-
sions are by AOIs, or by phone calls, or by encounters in the
field, or otherwise, they merely address day-to-day resource
management and feeding of livestock. Review of that sort of
decision is not contemplated by the APA. In fact, the Supreme
Court has frowned upon broad programmatic attacks on
agency action because, among other things, those would
empower courts “to determine whether compliance was
achieved — which would mean that it would ultimately
become the task of the supervising court, rather than the
agency, to work out compliance with the broad statutory man-
date, injecting the judge into day-to-day agency manage-
ment.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
66-67, 124 S. Ct. 2373, 2381, 159 L. Ed. 2d 137 (2004). That,
of necessity, leads to a final reason that we should not accept
ONDA’s position.
In pragmatic terms, if every AOI for every permit in every
allotment every year is to be open to litigation by ONDA, and
others,4 it is a little difficult to see how the grazing program
can continue, if the purpose of the program is to feed animals.
They need to eat now rather than at the end of some lengthy
court process. But, I fear that what is really afoot is an attack
by ONDA on the whole grazing program. That is no mystery
— ONDA asked that the land be set aside for twenty to thirty
years. It is also no mystery that broad attacks of that sort are
neither within the purpose nor a proper use of APA review.
See S. Utah Wilderness Alliance, 542 U.S. at 64, 124 S. Ct.
at 2379-80; Nat’l Wildlife Fed’n, 497 U.S. at 891, 110 S. Ct.
3
Nat’l Wildlife Fed’n, 497 U.S. at 890, 110 S. Ct. at 3189.
4
They may do so seriatim. See Headwaters Inc. v. U.S. Forest Serv.,
399 F.3d 1047, 1050 (9th Cir. 2005).
11858 OREGON NATURAL DESERT v. USFS
at 3190. I do not think that we should let ourselves be
ensnared by ONDA’s little springe.
Thus, I respectfully dissent.