Ninth Circuit Upholds Forest Service Grazing Permits Challenged Under NFMA
In the case Oregon Natural Desert Association v. United States Forest Service (9th Cir. 2020) 957 F.3d 1024, the Ninth Circuit Court of Appeals considered the issuance of grazing permits, grazing permit modifications, and annual operation instructions (AOIs) issued by the U.S. Forest Service on seven allotments in a national forest. Environmental organizations, including Center for Biological Diversity challenged the various grazing operations, arguing that the Forest Service failed to analyze and show that the grazing actions were consistent with the applicable forest plan. Several grazing permittees intervened as defendants. The district court granted a motion for summary judgment in favor of the Forest Service and the grazing permittees, and the environmental organizations appealed to the Ninth Circuit.
On appeal, the Ninth Circuit affirmed the district court’s decision to grant summary judgment in favor of the Forest Service and grazing permittees. The appellate court explained that it reviews the district court’s decision on motions for summary judgment de novo. In addition, the court reviews alleged violations of the National Forest Management Act (NFMA) under the deferential arbitrary and capricious standard of review.
The Ninth Circuit rejected the plaintiff/appellant environmental organizations argument that NFMA includes a distinct procedural requirement that the Forest Service “analyze and show” each grazing decision is consistent with the applicable forest plan. However, the appellants did not provide cites to any statute or regulation describing this explicit requirement. Rather, appellants relied on cases involving NEPA-mandated environmental assessment that involved NFMA. Thus, the Ninth Circuit did not find that the Forest Service was obligated as a procedural matter to make a written, site-specific forest plan consistency determination for each grazing authorization.
The Ninth Circuit also considered and rejected the appeal on substantive grounds. The court recognized that the Forest Service has a substantive obligation to ensure site-specific projects and activities are consistent with applicable forest plans. However, the administrative record demonstrated that the Forest Service did meet the substantive requirements of the applicable forest plan standards. For example, the Forest Service required annual monitoring to ensure riparian management objectives were being obtained. In addition, site-specific grazing limitations based on the results of monitoring functioned to protect special-status fish habitat. Thus, the Forest Service did not act arbitrarily or capriciously on a substantive basis.