Onda v. Usfs ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON NATURAL DESERT No. 18-35514
ASSOCIATION; CENTER FOR
BIOLOGICAL DIVERSITY, D.C. No.
Plaintiffs-Appellants, 3:03-cv-00213-
PK
v.
UNITED STATES FOREST SERVICE; OPINION
ROGER W. WILLIAMS, Malheur
National Forest Supervisor,
Defendants-Appellees,
and
JEFF HUSSEY; SHERRI HUSSEY;
MARK JOYCE; WENDY L. JOYCE;
ANTHONY W. JOYCE; KATHERINE
JOYCE; J&M COOMBS LLC; CHARLES
DUNTEN; DARWIN DUNTEN; JOHN
AHMANN; JUDY AHMANN; ELDER
RANCH, INC.; JOSEPH CRONIN; GAY
CRONIN; NORMAN ENGEBERG;
JULIEANN ENGEBERG,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
2 ONDA V. USFS
Argued and Submitted February 6, 2020
Seattle, Washington
Filed May 1, 2020
Before: MILAN D. SMITH, JR. and N. RANDY SMITH,
Circuit Judges, and JOHN R. TUNHEIM, * District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
Environmental Law / Grazing Permits
The panel affirmed the district court’s grant of summary
judgment for the U.S. Forest Service and intervenors in an
action challenging the Forest Service’s issuance of grazing
authorizations between 2006 and 2015 on seven allotments
in the Malheur National Forest.
The panel held that plaintiffs’ challenge to the contested
grazing authorizations was justiciable. Specifically, the
panel held that plaintiffs’ challenge was sufficiently ripe
where they challenged a discrete agency action that was
harmful to them. Second, the panel held that the dispute was
not moot where the challenge concerned the cumulative
*
The Honorable John R. Tunheim, United States Chief District
Judge for the District of Minnesota, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ONDA V. USFS 3
effects of grazing on bull trout habitats and was a sufficiently
live controversy which the court could address.
The panel rejected plaintiffs’ procedural challenge.
Because the Forest Service was not obligated by statute,
regulation, or caselaw to memorialize each site-specific
grazing authorization’s consistency with the Forest Plan, the
absence of such a document was not in itself arbitrary and
capricious under the Administrative Procedure Act and the
National Forest Management Act (“NMFA”).
The panel construed plaintiffs’ appeal as implicitly
challenging the substantive consistency of the challenged
grazing authorizations as well.
Inland Native Fish Strategy (INFISH) Standard GM-1
requires the agency to modify its grazing practices to the
extent they prevent attainment of Riparian Management
Objectives or are likely to adversely affect inland native fish.
The panel deferred to the Forest Service’s expertise in
determining whether, given the many factors at play, and
given its extensive monitoring and enforcement activities
protecting bull trout habitats, it must modify or suspend
grazing activity in order to comply with Standard GM-1.
The panel held that the Forest Service did not act arbitrarily
or capriciously with respect to the NFMA’s consistency
requirement as applied to Standard GM-1 in issuing any of
the challenged grazing authorizations.
Forest Plan Management Area 3A Standard 5 provides
the necessary habitat to maintain or increase populations of
management indicator species. The panel held that the
Forest Service’s ongoing site-specific monitoring, analysis,
and enforcement activities aimed at protecting and
improving bull trout habitats were reasonable means of
4 ONDA V. USFS
ensuring consistency with Standard 5. The panel concluded
that the Forest Service did not act arbitrarily or capriciously
with respect to Standard 5 in issuing any of the challenged
grazing authorizations.
COUNSEL
Peter M. Lacy (argued), Oregon Natural Desert Association,
Portland, Oregon; Stephanie M. Parent, Center for
Biological Diversity, Portland, Oregon; David H. Becker,
Law Office of David H. Becker LLC, Portland, Oregon; for
Plaintiffs-Appellants.
Brian C. Toth (argued), Attorney; United States Department
of Justice, Washington, D.C.; Stephen J. Odell, Assistant
United States Attorney; Billy J. Williams, United States
Attorney; Jeffrey B. Clark, Assistant Attorney General;
United States Attorney’s Office, Portland, Oregon; Val M.
McLam Black, Senior Counsel; Stephen Alexander Vaden,
General Counsel; Office of the General Counsel, United
States Department of Agriculture, Portland, Oregon; for
Defendants-Appellees.
Scott W. Horngren (argued) and Caroline Lobdell, Western
Resources Legal Center, Portland, Oregon, for Intervenor-
Defendants-Appellees.
ONDA V. USFS 5
OPINION
M. SMITH, Circuit Judge:
Plaintiffs-Appellants Oregon Natural Desert Association
and Center for Biological Diversity (collectively, ONDA)
appeal the district court’s grant of summary judgment for
Defendants-Appellees United States Forest Service and
Roger W. Williams, Malheur National Forest Supervisor
(collectively, the Forest Service). ONDA challenges the
Forest Service’s issuance of grazing authorizations between
2006 and 2015 on seven allotments in the Malheur National
Forest (MNF). ONDA argues that the Forest Service acted
arbitrarily and capriciously in its application of the
Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A),
and the National Forest Management Act (NFMA),
16 U.S.C. § 1604(i), when it failed to “analyze and show”
that the grazing authorizations were consistent with the MNF
Land and Resource Management Plan (Forest Plan). 1
While we agree with ONDA that this case is justiciable,
we hold that the Forest Service met its procedural and
substantive obligations pursuant to the NFMA and the APA
in issuing the challenged grazing authorizations, and we
affirm the district court’s grant of summary judgment for the
Forest Service.
1
This case also involves Intervenors-Defendants-Appellees Jeff
Hussey et al. (collectively, Intervenors), a group of ranchers whose cattle
graze on the allotments in question. For simplicity, we refer only to
Defendant Forest Service except where it is necessary to distinguish
Intervenors.
6 ONDA V. USFS
FACTS AND PROCEDURAL BACKGROUND
I. Livestock Grazing in the Malheur National Forest
The Malheur and North Fork Malheur Rivers flow from
Eastern Oregon’s Blue Mountains to join the Snake River at
the Idaho border. The rivers are home to the bull trout, the
regional population of which was listed as a threatened
species pursuant to the Endangered Species Act (ESA),
16 U.S.C. § 1531 et seq., in 1998. Determination of
Threatened Status for the Klamath River and Columbia
River Distinct Population Segments of Bull Trout, 63 Fed.
Reg. 31,647, 31,647 (June 10, 1998). The bull trout
population along the Malheur and North Fork Malheur
Rivers has been in continuous decline over the past century.
To thrive, bull trout require cold water temperatures, clean
water quality, complex channel characteristics, and well-
connected migratory pathways. Livestock grazing activity
can damage bull trout habitat by removing cooling riparian
vegetation, eroding or collapsing streambanks, widening
stream channels, and degrading water quality.
The Forest Service manages the MNF, which includes
parts of the Malheur and North Fork Malheur Rivers,
pursuant to the 1990 Forest Plan. The NFMA, and the
regulations promulgated pursuant to its authority, provide
for the creation of forest plans and define their important role
in the Forest Service’s management of national forests. See
16 U.S.C. § 1604; 36 C.F.R. Part 219. The NFMA directs
the Forest Service to assure that its forest plans provide for
and sustainably balance multiple uses of the forest including
outdoor recreation, range, timber, watershed, wildlife and
fish, and wilderness uses. 16 U.S.C. § 1604(e)(1); see also
The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir.
2008) (en banc) (“Congress has consistently acknowledged
that the Forest Service must balance competing demands in
ONDA V. USFS 7
managing National Forest System lands.”), overruled in part
on other grounds by Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008). The NFMA requires that “[r]esource
plans and permits, contracts, and other instruments for the
use and occupancy of National Forest System lands shall be
consistent with the [forest] plans.” 16 U.S.C. § 1604(i).
In 1995, the Forest Service adopted the Inland Native
Fish Strategy (INFISH), providing interim direction in the
management of inland fish habitats in Eastern Oregon and
surrounding areas. Notice of Decision, 60 Fed. Reg. 39,927,
39,927 (Aug. 4, 1995). INFISH establishes six Riparian
Management Objectives (RMOs) which are used to measure
the Forest Service’s progress in achieving INFISH’s goals:
bank stability, lower bank angle, stream width-to-depth
ratio, pool frequency, large woody debris, and water
temperature. A 1995 Forest Service Decision Notice and
Finding of No Significant Impact (Decision) amended the
region’s forest plans to incorporate the INFISH standards.
Livestock grazing in the MNF, pursuant to a permitting
regime established by the Federal Land Policy and
Management Act of 1976, 43 U.S.C. § 1752, is subject to the
Forest Plan as amended by INFISH. As part of its grazing
program, the Forest Service issues 10-year grazing permits
and yearly “Annual Operating Instructions” (AOIs)
(collectively, grazing authorizations) for specified
allotments. 2 While grazing permits contain general
limitations on the amount and intensity of grazing allowed
for the allotment in question, AOIs provide detailed yearly
2
The Forest Service can also develop Allotment Management Plans
(AMPs) to govern livestock operations generally within a specific
grazing allotment. 43 U.S.C. § 1752(d); 36 C.F.R. § 222.1(b)(2). No
AMPs are at issue in this appeal.
8 ONDA V. USFS
directives to the ranchers for their grazing allotments,
including scheduled pasture rotations, authorized number of
livestock, and timing restrictions. Both grazing permits and
AOIs include “move triggers,” like grass stubble height and
stream bank alteration, which indicate, based on physical
measurements of grazing impacts, when livestock needs to
be moved to other grazing areas. As part of this litigation,
in 2006 we ruled that AOIs are “final agency actions” subject
to review pursuant to the APA. Or. Nat. Desert Ass’n v. U.S.
Forest Serv. (ONDA I), 465 F.3d 977, 990 (9th Cir. 2006).
II. ONDA’s Litigation with the Forest Service
This litigation started in 2003, when ONDA sued the
Forest Service to challenge grazing practices in the MNF. In
2016, after years of parallel litigation and failed settlement
discussions, ONDA filed its fifth amended complaint,
alleging that 117 Forest Service grazing authorizations,
issued from 2006 through 2015, violated the NFMA, and, by
extension, the APA. 3 The challenged grazing authorizations
include 11 grazing permits, 5 grazing permit modifications,
and 101 AOIs on seven allotments along the Malheur and
North Fork Malheur Rivers.
ONDA ultimately moved for summary judgment
requesting (1) declaratory relief as to all challenged grazing
authorizations, and (2) injunctive relief barring livestock
grazing in bull trout critical habitat and certain other areas
until the Forest Service could demonstrate compliance with
the Forest Plan. The Forest Service and Intervenors cross-
moved for summary judgment. On April 16, 2018, the
district court, adopting the findings and recommendations of
3
ONDA also alleged violations of the Wild and Scenic Rivers Act
which are not before us on appeal.
ONDA V. USFS 9
the magistrate judge, granted summary judgment for the
Forest Service and Intervenors on all claims, and dismissed
the action with prejudice.
On appeal, ONDA argues that the grazing authorizations
were unlawful because the Forest Service failed to analyze
and show their consistency with the following two Forest
Plan standards:
• INFISH Standard GM-1 (Standard GM-1):
Modify grazing practices (e.g., accessibility of
riparian areas to livestock, length of grazing season,
stocking levels, timing of grazing, etc.) that retard or
prevent attainment of Riparian Management
Objectives or are likely to adversely affect inland
native fish. Suspend grazing if adjusting practices is
not effective in meeting Riparian Management
Objectives.
• Forest Plan Management Area 3A Standard 5
(Standard 5): Provide the necessary habitat to
maintain or increase populations of management
indicator species: bull trout, cutthroat trout, and
rainbow/redband trout.
With respect to Standard GM-1, INFISH defines “retard
attainment” as “to slow the rate of recovery below the near
natural rate of recovery if no additional human caused
disturbance was placed on the system.” In the analogous
context of the PACFISH guidelines, which contain a
standard nearly identical to Standard GM-1, the Forest
Service interpreted “retard attainment,” to require
“limit[ing] [grazing’s] environmental effects to those that do
10 ONDA V. USFS
not carry through to the next year, thereby avoiding
cumulative, negative effects.” 4
JUSTICIABILITY
While we agree with the parties that 28 U.S.C. §§ 1291
and 1331 provide us with statutory jurisdiction over this
case, the Forest Service separately argues that ONDA’s
challenge to the contested grazing authorizations is not
justiciable pursuant to the doctrines of ripeness and
mootness. We address each argument in turn and find that
ONDA’s challenge is justiciable.
I. Ripeness
Lujan v. National Wildlife Federation, 497 U.S. 871
(1990) clarifies that a party cannot challenge an entire
agency management regime under the auspices of the APA:
“[plaintiffs] cannot seek wholesale improvement of [a]
program by court decree, rather than in the offices of the
[Forest Service] or the halls of Congress, where
programmatic improvements are normally made.” Id. at
891. Instead, plaintiffs must challenge a discrete agency
action that is harmful to them for their claim to be ripe. Id.
Ripeness is a question of law that we review de novo. See
Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1179
(9th Cir. 2010). In a similar context, we held that plaintiffs
must challenge “specific, final agency action[s]” rather than
“forest-wide management practices” to satisfy the
requirements of Lujan. Neighbors of Cuddy Mountain v.
Alexander, 303 F.3d 1059, 1067 (9th Cir. 2002) (challenges
4
The PACFISH guidelines, adopted by the Forest Service in 1994,
apply to anadromous fish-producing watersheds, while INFISH applies
to the native inland fish-producing watersheds at issue here.
ONDA V. USFS 11
to monitoring and management practices pursuant to the
NFMA “are reviewable when, and to the extent that, they
affect the lawfulness of a particular final agency action”).
Here, ONDA challenges 117 specific grazing
authorizations pertaining to seven of the 104 grazing
allotments in the MNF. The units at issue within those
allotments comprise 115,985 acres of the MNF’s total
1.5 million acres. The parties do not dispute that the grazing
authorizations at issue are final agency actions subject to
review pursuant to the APA. See ONDA I, 465 F.3d at 983,
985, 990. 5 Moreover, ONDA’s challenge to the Forest
Service’s NFMA consistency analysis is closely tied to site-
specific grazing authorizations. See Neighbors of Cuddy
Mountain, 303 F.3d at 1067 (“[T]here must be a relationship
between the lawfulness of the site-specific action and the
practice challenged.”). Although ONDA pushes the
boundary of ripeness by challenging a large number of
grazing authorizations, the specifics of ONDA’s challenge
persuade us that this lawsuit is sufficiently ripe. 6
5
Because it does not affect our ultimate disposition of this case, we
assume, without deciding, that grazing permits and grazing permit
modifications are reviewable final agency actions pursuant to the APA,
just as AOIs are.
6
The Forest Service’s reliance on Norton v. Southern Utah
Wilderness Alliance (SUWA), 542 U.S. 55 (2004) to support its argument
that ONDA’s suit is barred by Lujan is misplaced. SUWA describes the
requirements for review of agency inaction pursuant to 5 U.S.C.
§ 706(1). See 542 U.S. at 61–62. Here, it is undisputed that ONDA has
challenged site-specific, discrete grazing authorizations, so SUWA is
inapposite.
12 ONDA V. USFS
II. Mootness
The Forest Service also argues that, because many of the
challenged grazing authorizations have since expired, this
challenge is moot. We review mootness, a question of law,
de novo. Biodiversity Legal Found. v. Badgley, 309 F.3d
1166, 1173 (9th Cir. 2002). “The burden of demonstrating
mootness is a heavy one.” Cantrell v. City of Long Beach,
241 F.3d 674, 678 (9th Cir. 2001). We note that “completion
of activity is not the hallmark of mootness. Rather, a case is
moot only where no effective relief for the alleged violation
can be given.” Neighbors of Cuddy Mountain, 303 F.3d
at 1065.
The carryover effects of the allegedly unlawful grazing
authorizations challenged in ONDA’s complaint extend
beyond the year of grazing and can be remedied by this
court. The relief requested by ONDA could remedy the past
allegedly arbitrary and capricious authorizations by halting
grazing and allowing the seven allotments’ riparian habitats
to recover from the alleged cumulative damage of years of
grazing activity. 7 See Forest Guardians v. U.S. Forest Serv.,
329 F.3d 1089, 1094 (9th Cir. 2003) (challenge to grazing
program was not moot, even where it had expired, because
“the district court could order the [Forest] Service to develop
tactics to mitigate the damage caused by the violation, such
as moving or removing livestock from the allotments so the
land can repair itself.”); Neighbors of Cuddy Mountain,
7
ONDA’s fifth amended complaint asks for injunctive relief only
with respect to claims that are not on appeal. However, because the
complaint also requests “any such further relief as requested by the
Plaintiffs or as this Court deems just and proper,” we can consider further
injunctive relief in deciding whether this appeal is moot. See Neighbors
of Cuddy Mountain, 303 F.3d at 1066 (citing Headwaters, Inc. v. Bureau
of Land Mgmt., 893 F.2d 1012, 1014–15 (9th Cir. 1989).
ONDA V. USFS 13
303 F.3d at 1065–66 (review of timber sale after trees had
been cut was not moot, because court could still order Forest
Service to mitigate the damage caused by the sale). ONDA’s
challenge concerns the cumulative effects of grazing on bull
trout habitats and is a sufficiently live controversy which the
court could address, for example, by ordering the Forest
Service to suspend and/or minimize grazing on the
allotments in question. Accordingly, we rule that this
dispute is not moot. 8
STANDARD OF REVIEW
Having decided that this dispute is justiciable, we now
consider the merits of ONDA’s appeal. We review the
district court’s decision on cross-motions for summary
judgment de novo. Guatay Christian Fellowship v. County
of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We review
alleged violations of the NFMA pursuant to 5 U.S.C.
§ 706(2)(A), which prohibits agency actions that are
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” All. for the Wild Rockies v. U.S.
Forest Serv., 907 F.3d 1105, 1112 (9th Cir. 2018). “Review
under the arbitrary and capricious standard ‘is narrow, and
[we do] not substitute [our] judgment for that of the
agency.’” Lands Council, 537 F.3d at 987 (alterations in
original) (quoting Earth Island Inst. v. U.S. Forest Serv.,
442 F.3d 1147, 1156 (9th Cir. 2006), abrogated in part on
other grounds by Winter, 555 U.S. 7). We will strike down
an agency action as arbitrary and capricious “if the agency
has relied on factors which Congress has not intended it to
8
It appears that the Forest Service abandoned its argument that
grazing authorizations from 2013–15 were moot in the district court. In
any case, our mootness ruling embraces all the grazing authorizations at
issue.
14 ONDA V. USFS
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or [if the agency’s
decision] is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983); All. for the Wild
Rockies, 907 F.3d at 1112.
ANALYSIS
I. Procedural Challenge
ONDA argues that the Forest Service’s grazing
authorizations were an arbitrary and capricious application
of the APA and the NFMA because, before issuing them, the
agency failed to adequately “analyze and show” their
consistency with Standards GM-1 or 5. In its briefing,
ONDA appeals to the “NFMA’s distinct requirement that the
Forest Service analyze and show that each grazing decision
it makes is consistent” with the Forest Plan in a
contemporaneous written document. ONDA’s Brief at 48.
But ONDA cites no statute or regulation containing any such
requirement, let alone describing the analysis’s required
form, timing, or content. Moreover, the text of 16 U.S.C.
§ 1604(i), in pertinent part, requires only that “permits . . .
shall be consistent with [forest] plans.”
Instead, ONDA argues that our precedents have created
a duty to “analyze and demonstrate consistency when it
authorizes the use of public lands.” ONDA’s Reply Br. at
12. But the cases cited by ONDA all concern substantive
violations of the NFMA contained within written analyses
required by the National Environmental Policy Act (NEPA),
ONDA V. USFS 15
42 U.S.C. § 4321 et seq., review process. 9 They do not stand
for the proposition that the NFMA and the APA, on their
own, require the Forest Service to “analyze and show,” in a
contemporaneous written document, that each of its actions
conform to the applicable forest plan. 10
Most recently, in Alliance for the Wild Rockies, we held
that a Forest Service project, analyzed as part of a NEPA-
mandated Final Environmental Impact Statement (EIS),
substantively violated the applicable forest plan, effectively
amending the forest plan within the project area, and thus
violated the NFMA’s consistency requirement. 907 F.3d
at 1112–17. Similarly, in Native Ecosystems Council v.
Tidwell, 599 F.3d 926 (9th Cir. 2010), we ruled that the
Forest Service’s NEPA-mandated Environmental
Assessment for a proposed grazing AMP substantively
violated the NFMA, its associated regulations, and the
applicable forest plan, because it chose to analyze the
project’s effects on species diversity by using a proxy that
was non-existent in the project area. Id. at 932–36. In Idaho
Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th
Cir. 2002), we reviewed NEPA-mandated documents
produced in connection with several timber sales and found
substantive violations of the NFMA. Id. at 966–73. Finally,
in Neighbors of Cuddy Mountain v. Alexander, 303 F.3d
1059 (9th Cir. 2002), we held that a NFMA challenge to a
timber sale, based on the NEPA-mandated EIS’s alleged
failure to collect sufficient data on species populations (as
9
ONDA notes, but does not dispute, the Forest Service’s decision
not to undertake a NEPA review for any of the challenged grazing
authorizations at issue here.
10
We note that the only two examples used by ONDA to illustrate
its requested consistency analysis were also generated as part of
documents required by the NEPA review process.
16 ONDA V. USFS
required by various regulations), was ripe, not moot, and not
redundant of the plaintiffs’ NEPA claim. Id. at 1065–71.
In the above cases, we analyzed NEPA-mandated
documentation and emphasized the Forest Service’s
substantive obligation pursuant to the NFMA to ensure each
project’s consistency with the applicable forest plan. See,
e.g., All. for the Wild Rockies, 907 F.3d at 1113–15; Native
Ecosystems Council, 599 F.3d at 934; Neighbors of Cuddy
Mountain, 303 F.3d at 1062. We did not rule upon whether,
in the absence of NEPA’s requirements, the NFMA and the
APA require a project’s consistency analysis to be
memorialized at the time the project is authorized. 11 And it
is clear that the agency is capable of mandating such a
procedure, if desired: as of 2012, the NFMA regulations
require exactly this kind of written analysis. See 36 C.F.R.
§ 219.15(d) (2012) (“A project or activity approval
document must describe how the project or activity is
consistent with applicable plan components.”). 12
In other cases interpreting the NFMA we have held that
“we [may not] impose ‘procedural requirements [not]
explicitly enumerated in the pertinent statutes.’” Lands
Council, 537 F.3d at 993 (quoting Wilderness Soc’y v.
11
Pacific Coast Federation of Fishermen’s Ass’ns v. National
Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001), also cited by
ONDA, likewise involves procedural requirements originating from a
statutory regime other than the NFMA: in that case, the ESA. See id.
at 1034–35 (noting that the National Marine Fisheries Service, when it
undertakes a project analysis required by the ESA, is permitted to inquire
into forest plan consistency).
12
This regulation does not apply to the Forest Plan at issue here,
which was adopted in 1990. 36 C.F.R. § 219.17(c); see All. for the Wild
Rockies, 907 F.3d at 1109 n.1.
ONDA V. USFS 17
Tyrrel, 918 F.2d 813, 818 (9th Cir. 1990)). We are mindful
of the Supreme Court’s mandate that “[a]bsent constitutional
constraints or extremely compelling circumstances the
‘administrative agencies “should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable
of permitting them to discharge their multitudinous
duties.”’” Vermont Yankee Nuclear Power Corp. v. Nat. Res.
Def. Council, Inc., 435 U.S. 519, 543 (1978) (quoting FCC
v. Schreiber, 381 U.S. 279, 290 (1965)). Because the Forest
Service was not obligated by statute, regulation, or caselaw
to memorialize each site-specific grazing authorization’s
consistency with the forest plan, the absence of such a
document is not in itself arbitrary and capricious.
II. Substantive Challenge
Although the gravamen of ONDA’s appeal appears to be
the claim, rejected above, that the Forest Service had a
procedural duty to “analyze and show” consistency with the
Forest Plan, we construe ONDA’s appeal as implicitly
challenging the substantive consistency of the challenged
grazing authorizations as well. In our substantive review,
we consider the administrative record and decide whether, in
issuing the grazing authorizations, the Forest Service “relied
on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or [an explanation
that] is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
Lands Council, 537 F.3d at 993 (alteration in original)
(quoting State Farm, 463 U.S. at 43).
We recognize the Forest Service’s substantive
obligations to ensure that “[s]ite-specific projects and
activities . . . be consistent with an approved forest plan,”
18 ONDA V. USFS
All. for the Wild Rockies, 907 F.3d at 1109 (citing 16 U.S.C.
§ 1604(i); 36 C.F.R. § 219.10(e)(1998)), and to “strictly
comply with a forest plan’s ‘standards,’ which are
considered binding limitations,” id. at 1110. See also
Neighbors of Cuddy Mountain, 303 F.3d at 1062. However,
our circuit’s caselaw establishes that we give the Forest
Service ample latitude in ensuring the consistency of its
actions with Forest Plans: “We will conclude that the Forest
Service acts arbitrarily and capriciously only when the
record plainly demonstrates that the Forest Service made a
clear error in judgment in concluding that a project meets the
requirements of the NFMA and relevant Forest Plan.” Lands
Council, 537 F.3d at 994. Moreover, we have held that “the
Forest Service’s interpretation and implementation of its
own Forest Plan is entitled to substantial deference.” Native
Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th
Cir. 2012).
Thus, in reviewing the grazing authorizations’
consistency with the Forest Plan, we ask whether, “[b]ased
on the record before us, the [Forest] Service’s actions . . .
reflect ‘a clear error of judgment.’” Forest Guardians,
329 F.3d at 1098 (quoting Morongo Band of Mission Indians
v. FAA, 161 F.3d 569, 573 (9th Cir. 1998)). Moreover, while
we “cannot defer to a void,” Or. Nat. Desert Ass’n v. Bureau
of Land Mgmt., 625 F.3d 1092, 1121 (9th Cir. 2010), “[e]ven
when an agency explains its decision with ‘less than ideal
clarity,’ a reviewing court will not upset the decision on that
account ‘if the agency’s path may reasonably be discerned.’”
Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461,
497 (2004) (quoting Bowman Transp., Inc. v. Arkansas–Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
ONDA V. USFS 19
A. Consistency with Standard GM-1
As described above, Standard GM-1 requires the agency
to “[m]odify [its] grazing practices (e.g. accessibility of
riparian areas to livestock, length of grazing season, stocking
levels, timing of grazing, etc.)” to the extent that those
grazing practices “retard or prevent attainment of [RMOs] or
are likely to adversely affect inland native fish.” Moreover,
it requires the agency to “[s]uspend grazing if adjusting
practices is not effective in meeting [RMOs].”
The record demonstrates that, during the period in
question, the Forest Service did just that. It monitored
riparian habitat conditions at local and watershed scales and
considered the modification and suspension of grazing
before, after, and during each year’s grazing season. Among
other activities, it conducted annual monitoring in each
allotment of several endpoint indicators (including stubble
height, shrub browse, bank alteration, and upland utilization)
designed to move stream characteristics toward RMOs;
prepared Biological Assessments pursuant to the ESA at the
allotment-level which explicitly analyzed conformity with
RMOs and INFISH standards; analyzed RMO compliance
through the PACFISH/INFISH Biological Opinion
Effectiveness Monitoring Program (PIBO) throughout the
entire period in question; and consulted informally in 2007
and formally in 2012 with the U.S. Fish and Wildlife Service
(FWS), each time receiving FWS approval of the Forest
Service’s determination that its proposed livestock
management was “not likely to adversely affect” bull trout
or bull trout critical habitat. 13
13
ONDA argues that the Forest Service’s analyses are post-hoc and
prepared for litigation purposes. Given that this lawsuit began in 2003,
20 ONDA V. USFS
Given the cyclical nature of grazing, which, unlike a
timber sale, is conducted on an annual basis with damage
slowly accumulating over time, the Forest Service employs
a multi-pronged approach to ensure consistency with its
Forest Plan. This is especially reasonable given the ongoing
nature of the obligation in Standard GM-1, which could
require the Forest Service to take action before, during, or
even after the pendency of a given grazing authorization. In
Forest Guardians, we endorsed the Forest Service’s grazing
program for similar reasons, holding that phasing in grazing
reductions was a “reasonable response” and emphasizing
that monitoring grazing, in spite of past failures, was “a
rational decision.” 329 F.3d at 1098–99.
Moreover, the grazing authorizations themselves contain
specific measures protecting riparian habitats and make
those measures subject to ongoing inspections and
negotiations with Forest Service officers. Some of the
grazing permits specifically refer to INFISH in their
discussions of the permit’s temporal, spatial, and use-related
limits on grazing, and the grazing authorizations’ limits
protect RMO-related habitat features like stubble height,
shrub browse, and bank stability. The record contains
transcripts of meetings between allottees and Forest Service
officials in which the protection of bull trout habitat is
specifically discussed. And the Forest Service has on many
occasions suspended or stopped grazing activity in response
to potential effects on bull trout, indicating that it is not only
all of the grazing permits in question in this case were issued after the
commencement of litigation. Nevertheless, we note that the Forest
Service’s analysis upon which this ruling is based includes materials
throughout the period at issue—from 2006 through 2015.
ONDA V. USFS 21
monitoring, but also enforcing plan standards related to the
protection of bull trout habitats.
Finally, we note that the Decision incorporating
Standard GM-1 into the Forest Plan stresses its flexibility.
The Decision notes that “RMOs should be refined to better
reflect conditions that are attainable in a specific watershed
or stream reach,” and “[i]t is not expected that the [RMOs]
would be met instantaneously, but rather would be achieved
over time,” See Great Old Broads for Wilderness v. Kimbell,
709 F.3d 836, 850 (9th Cir. 2013) (“INFISH does not require
RMOs to be achieved as soon as they are announced;
instead, they serve as benchmarks against which progress
can be measured and degradation prevented.”). The
Decision also notes that conforming to Standard GM-1 “will
require professional judgement and should be based on a
watershed analysis of local conditions.” Finally, the
Decision contemplates partial compliance, stating that if one
RMO is “met or exceeded, there may be some latitude in
assessing the importance of the objectives for the other
features that contribute to good habitat conditions.”
The continuing struggles of the bull trout in the MNF are
undoubtedly troubling. But the lesson of Lands Council is
that is that we are not a “panel of scientists” and cannot
review agency actions as such. 537 F.3d at 988. As an
illustration of the wisdom of this approach, the record in this
case demonstrates that many factors beyond livestock
grazing could be fueling the bull trout’s decline. Other
recognized factors include “the creation and management of
[nearby] dams. . . irrigation withdrawals . . . past bull trout
harvest, and introduction of non-native species (brook
trout).” We defer to the Forest Service’s expertise in
determining whether, given the many factors at play, and
given its extensive monitoring and enforcement activities
22 ONDA V. USFS
protecting bull trout habitats, it must modify or suspend
grazing activity in order to comply with Standard GM-1. We
hold that the Forest Service did not act arbitrarily or
capriciously with respect to the NFMA’s consistency
requirement as applied to Standard GM-1 in issuing any of
the challenged grazing authorizations.
B. Consistency with Standard 5
For similar reasons, ONDA’s substantive argument that
the MNF’s grazing authorizations are arbitrary and
capricious because they violate Standard 5 also fails.
Standard 5 requires that the Forest Service “[p]rovide the
necessary habitat to maintain or increase populations of
management indicator species: bull trout, cutthroat trout, and
rainbow/redband trout.” As discussed above, the record
amply demonstrates that the Forest Service is actively
engaged in protecting bull trout habitats from the effects of
livestock grazing by monitoring the effects of grazing on
various habitat indicators and implementing site-specific
grazing limitations.
We also note that Standard 5 is a broad planning
standard, one of fifty other standards that apply to this area,
and thus it is challenging to enforce. Caselaw counsels
against enforcing open-ended standards in fact-specific
contexts. Cf. SUWA, 542 U.S. at 71 (“[A]llowing general
enforcement of plan terms would lead to pervasive
interference with BLM’s own ordering of priorities.”);
Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1222
(9th Cir. 2011) (“[A]lthough the [Federal Land and Policy
Management Act] mandates that the BLM preserve
wilderness and manage public lands in accordance with land
use plans, its mandates are not tantamount to a ‘specific
statutory command requiring’ agency action.” (quoting
SUWA, 542 U.S. at 71)).
ONDA V. USFS 23
In any case, we certainly cannot effectively mandate, as
ONDA would have us do, that bull trout numbers increase,
given the indirect language of Standard 5 and the causal
complexity underlying the bull trout’s population decline.
The Forest Service’s ongoing site-specific monitoring,
analysis, and enforcement activities aimed at protecting and
improving bull trout habitats, described above, were
reasonable means of ensuring consistency with Standard 5.
See Forest Guardians, 329 F.3d at 1098–99. We hold that
the Forest Service did not act arbitrarily or capriciously with
respect to Standard 5 in issuing any of the challenged grazing
authorizations.
CONCLUSION
The administrative record demonstrates that the Forest
Service did not act arbitrarily or capriciously, on either a
procedural or substantive basis, in issuing the challenged
grazing authorizations. Heeding the clear lesson of Lands
Council, we defer to the agency’s reasonable exercise of its
scientific expertise in choosing how best to meet the
requirements of its Forest Plan while accommodating the
competing interests of environmental, recreational,
extractive, and other uses in the Malheur National Forest.
Accordingly, we AFFIRM the district court’s grant of
summary judgment for the Forest Service and Intervenors.
AFFIRMED.