FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`OREGON NATURAL DESERT
`ASSOCIATION; CENTER FOR
`BIOLOGICAL DIVERSITY,
`Plaintiffs-Appellants,
`
` No. 18-35514
`
`D.C. No.
`3:03-cv-00213-
`PK
`
`
`OPINION
`
`v.
`
`
`UNITED STATES FOREST SERVICE;
`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
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`OREGON NATURAL DESERT
`ASSOCIATION; CENTER FOR
`BIOLOGICAL DIVERSITY,
`Plaintiffs-Appellants,
`
` No. 18-35514
`
`D.C. No.
`3:03-cv-00213-
`PK
`
`
`OPINION
`
`v.
`
`
`UNITED STATES FOREST SERVICE;
`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
`
`
`
`
`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.
`
`2
`
`
`
`
`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.
`
`
`
`3
`
`ONDA V. USFS
`
`
`
`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
`
`
`
`ONDA V. USFS
`
`4
`
`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
`
`OPINION
`
`5
`
`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
`
`
`
`7
`
`ONDA V. USFS
`
`
`
`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
` While grazing permits contain general
`allotments.2
`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.
`
`
`
`ONDA V. USFS
`
`8
`
`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.
`
`judgment
`ONDA ultimately moved for summary
`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
`
`
`
`the magistrate judge, granted summary judgment for the
`Forest Service and Intervenors on all claims, and dismissed
`the action with prejudice.
`
`9
`
`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
`
`
`
`ONDA V. USFS
`
`10
`
`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
`
`
`
`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”).
`
`11
`
`specific grazing
`Here, ONDA challenges 117
`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
`
`II. Mootness
`
`ONDA V. USFS
`
`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).
`
`
`
`13
`
`ONDA V. USFS
`
`
`
`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.
`
`
`
`ONDA V. USFS
`
`14
`
`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
`
`the Forest Service’s grazing
`that
`ONDA argues
`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
`
`
`
`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
`
`15
`
`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.
`
`
`
`ONDA V. USFS
`
`16
`
`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.
`
`
`
`17
`
`ONDA V. USFS
`
`
`
`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).
`
`substantive
`the Forest Service’s
`recognize
`We
`obligations to ensure that “[s]ite-specific projects and
`activities . . . be consistent with an approved forest plan,”
`
`
`
`ONDA V. USFS
`
`18
`
`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).
`
`the grazing authorizations’
`reviewing
`in
`Thus,
`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
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