FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`2-BAR RANCH LIMITED
`PARTNERSHIP, a Montana limited
`partnership; BROKEN CIRCLE RANCH
`COMPANY, INC., a Montana profit
`corporation; R BAR N RANCH, LLC,
`a Montana limited liability
`corporation,
`
`Plaintiffs-Appellees,
`
` No. 19-35351
`
`D.C. No.
`2:18-cv-00033-
`SHE
`
`
`OPINION
`
`
`
`v.
`
`
`UNITED STATES FOREST SERVICE, an
`Agency of the United States
`Department of Agriculture; THOMAS
`J. VILSACK, in his official capacity as
`Secretary of the United States
`Department of Agriculture;
`VICTORIA CHRISTIANSEN, in her
`official capacity as Chief of the
`United States Forest Service;
`LEANNE MARTEN; CHERI FORD, in
`her official capacity as Forest
`Supervisor for the Beaverhead-
`Deerlodge National Forest;
`CAMERON RASOR, in his official
`capacity as District Ranger for the
`Pintler Ranger District in the
`Beaverhead-Deerlodge National
`Forest,
`
`Defendants-Appellants.
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`Appeal from the United States District Court
`for the District of Montana
`Sam E. Haddon, District Judge, Presiding
`
`Argued and Submitted June 4, 2020
`Portland, Oregon
`
`Filed May 6, 2021
`
`Before: Marsha S. Berzon and Daniel P. Collins, Circuit
`Judges, and Jennifer Choe-Groves,* Judge.
`
`Opinion by Judge Berzon
`
`2
`
`
`
`
`SUMMARY**
`
`Grazing Permits / Equal Access to Justice Act
`
`
`
`
`The panel reversed the district court’s partial grant of
`
`summary judgment to Plaintiff cattle ranchers in their action
`challenging the U.S. Forest Service’s decision to apply 1995
`Riparian Mitigation Measures to the Dry Cottonwood
`Allotment in the Beaverhead-Deerlodge National Forest,
`where plaintiffs had grazing permits for their cattle; held that
`Plaintiffs were not entitled to attorneys’ fees under the Equal
`Access to Justice Act (“EAJA”) for their administrative
`
`
`* The Honorable Jennifer Choe-Groves, Judge for the United States
`Court of International Trade, 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
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`appeal; and remanded with instructions to grant summary
`judgment to the Service.
`
`In 1995, the Service amended some forest plans,
`
`including the 1987 Deerlodge Forest Plan. To implement
`the Plan’s new grazing standard, the Service developed a set
`of mitigation measures (the “1995 Riparian Mitigation
`Measures”) that applied to specific allotments, including the
`Dry Cottonwood Allotment. In 2009, the Service replaced
`the 1987 Deerlodge Forest Plan with the 2009 Forest Plan,
`and continued to apply the 1995 Riparian Mitigation
`Measures. The district court held that the Service’s
`application of the 1995 Riparian Mitigation Measures to the
`Dry Cottonwood Allotment was arbitrary and capricious and
`violated the National Forest Management Act.
`
`The panel held that the plain language of the 2009 Forest
`
`Plan supported the Service’s application of the 1995
`Riparian Mitigation Measures to the Dry Cottonwood
`Allotment, and to Plaintiffs’ grazing permits. The Service’s
`incorporation of the 1995 measures into Plaintiffs’ grazing
`permits was therefore lawful. Because the 2009 Forest Plan
`was not ambiguous in any pertinent respect, the panel did not
`reach the Service’s alternative argument that the panel
`should defer to its regulatory interpretation.
`
`EAJA provides that an agency that conducts an
`
`adversary adjudication shall award to a prevailing party fees
`and other expenses incurred in connection with that
`proceeding. An agency proceeding is an “adversary
`adjudication” for EAJA purposes only if it is actually
`governed by the Administrative Procedures Act (“APA”)’s
`formal adjudication requirements, as opposed to similar
`requirements of another statute or regulation. 5 U.S.C. § 554
`delineates the scope of proceedings governed by the formal
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`4
`
`adjudication requirements of the APA. The panel held that
`the Service’s administrative appeal process was not
`governed by Section 554. The panel held further that the
`administrative appeal here was not an “adversary
`adjudication” for purposes of EAJA. The panel concluded
`that the Service properly denied Plaintiffs’ request for
`attorneys’ fees for their administrative appeal.
`
`
`
`COUNSEL
`
`
`Erika B. Kranz (argued) and David Gunter, Attorneys; Eric
`Grant, Deputy Assistant Attorney General; Environment and
`Natural Resources Division, United States Department of
`Justice, Washington, D.C.; Steven Vaden, General Counsel;
`Elise Foster, Attorney; United States Department of
`Agriculture, Washington, D.C.; for Defendants-Appellants.
`
`Calli J. Michaels (argued) and John E. Bloomquist,
`Bloomquist Law Firm P.C., Dillon, Montana, for Plaintiffs-
`Appellees.
`
`Abigail J. St. Lawrence, Abigail St. Lawrence Law Firm
`P.C., Helena, Montana, for Amici Curiae Rocky Mountain
`Stockgrowers Association and Public Lands Council.
`
`
`
`
`
`

`

`
`
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`5
`
`OPINION
`
`BERZON, Circuit Judge:
`
`The U.S. Forest Service and other federal defendants
`(collectively, “the Service”) appeal the judgment entered by
`the district court after the court’s grant of partial summary
`judgment to the plaintiff cattle ranchers (collectively,
`“Plaintiffs”). We conclude that the Service lawfully applied
`a particular set of standards for protecting stream habitats
`from the effects of cattle grazing, the 1995 Riparian
`Mitigation Measures,
`to Plaintiffs’ grazing permits.
`Additionally, Plaintiffs were not entitled to attorney’s fees
`under
`the Equal Access
`to Justice Act
`for
`their
`administrative appeal. We therefore reverse the district
`court’s grant of partial summary judgment to Plaintiffs and
`remand with instructions to grant summary judgment to the
`Service.
`
`BACKGROUND
`
`I.
`
`Plaintiffs 2-Bar Ranch Limited Partnership, R Bar N
`Ranch, LLC, and Broken Circle Ranch Company, Inc. hold
`or held permits to graze cattle on the Dry Cottonwood
`Allotment, which is part of the Beaverhead-Deerlodge
`National Forest in Montana.1 The U.S. Forest Service
`manages the forest under the multiple-use, sustained-yield
`mandate prescribed by the National Forest Management Act
`(“NFMA”), which requires the Service to balance uses
`
`
`1 Broken Circle Ranch no longer holds a permit but asserts an
`interest in the appeal to the extent it affects its entitlement to attorney’s
`fees from the administrative proceeding.
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`6
`
`including “outdoor recreation, range, timber, watershed,
`wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1).
`
`“NFMA envisions a two-stage approach to forest
`planning.” Inland Empire Pub. Lands Council v. U.S. Forest
`Serv., 88 F.3d 754, 757 (9th Cir. 1996). At the first stage, the
`Service develops a forest plan, along with an environmental
`impact statement as required by the National Environmental
`Policy Act (“NEPA”), 42 U.S.C. § 4332. Forest plans are
`broad, programmatic documents that “guide sustainable,
`integrated . . . management of the resources within the plan
`area in the context of the broader landscape.” 36 C.F.R.
`§ 219.1(b). “Direct implementation of the [forest plan]
`occurs at a second stage, when individual site-specific
`projects are proposed and assessed.” Inland Empire, 88 F.3d
`at 757 (alteration and citation omitted). “These site-specific
`projects must be consistent with” the forest plan. Id.
`
`The Service also takes a multistage approach to
`implementing its grazing program. When it decides to allow
`grazing in a particular area of a national forest, it develops
`an allotment management plan for that area. See 43 U.S.C.
`§ 1752(d); 36 C.F.R. § 222.2(b). An allotment management
`plan “prescribes the manner in, and extent to, which
`livestock operations will be conducted . . . to meet the
`multiple-use, sustained-yield, economic and other needs and
`objectives as determined for the lands” involved. 43 U.S.C.
`§ 1702(k)(1); 36 C.F.R. § 222.1(b)(2).
`
`The Service authorizes grazing on an allotment by
`issuing individual grazing permits to ranchers. See 43 U.S.C.
`§ 1752(a). Permits, which typically last for ten years, specify
`the terms and conditions of the grazing allowed. Id.; see
`36 C.F.R. § 222.3(c). The Service may adjust the amount of
`grazing allowed each year by issuing annual operating
`instructions. See Forest Service Handbook 2209.13, § 94.3.
`
`

`

`7
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`“Whereas the [allotment management plan] relates the
`directives of the applicable forest plan to the individual
`grazing allotment, and the grazing permit sets grazing
`parameters through a ten-year period, the [annual operating
`instructions] annually convey[] these more long-term
`directives into instructions to the permittee for annual
`operations.” Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
`465 F.3d 977, 980 (9th Cir. 2006).
`
`II.
`
`Between 1987 and 2009, all permits for grazing on the
`Dry Cottonwood Allotment were governed by the 1987
`Deerlodge Forest Plan. In 2009, the Service issued a new
`forest plan for
`the combined Beaverhead-Deerlodge
`National Forest (the “2009 Forest Plan”). The 2009 Forest
`Plan, discussed further below, remains in effect today.
`
`The 1987 Deerlodge Forest Plan set “allowable use
`levels” for
`livestock grazing of riparian vegetation.
`Depending on the condition of the vegetation in a particular
`area and the type of grazing contemplated, the plan limited
`the percentage of riparian shrubs, bluegrass, and sedge that
`livestock could consume.
`
`In 1995, the Service amended some forest plans,
`including the 1987 Deerlodge Forest Plan, by adopting a new
`approach, the Inland Native Fish Strategy, to managing
`habitat for inland native fish. The amendment added a new
`grazing standard to the forest plan, directing the Service to
`“[m]odify grazing practices . . . that retard or prevent
`attainment” of certain riparian management objectives. The
`objectives related to stream characteristics such as water
`temperature and bank stability.
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`8
`
`
`The 1995 amendment did not alter the 1987 Forest Plan’s
`existing allowable use levels for livestock grazing of riparian
`vegetation. But to implement the plan’s new grazing
`standard, the Service developed a set of mitigation measures
`(the “1995 Riparian Mitigation Measures”) that could be
`applied to specific allotments. See Appendix. The 1995
`Riparian Mitigation Measures “use four measurable
`parameters to determine the appropriate level of livestock
`grazing in riparian areas”: “streambank disturbance,”
`“stubble height,” “woody browse use,” and “riparian
`herbaceous utilization.” The measures are presented in the
`form of a matrix prescribing different allowable use levels
`for each parameter, depending on the physical characteristics
`of a riparian area and the types of vegetation present. The
`Service did not incorporate the 1995 Riparian Mitigation
`Measures into the 1987 Forest Plan itself but instead applied
`them to designated allotments, on a case-by-case basis.
`
`The Dry Cottonwood Allotment was one such allotment.
`In 1995, the Service prepared an environmental assessment
`under NEPA to determine whether to “change current
`grazing practices” on the Dry Cottonwood Allotment “by
`implementing riparian mitigation measures to maintain or
`move toward desired riparian conditions.” In 1996, the
`Service issued a Record of Decision applying the 1995
`Riparian Mitigation Measures to the Dry Cottonwood
`Allotment. The Service also produced an allotment
`management plan specifying four areas that would be
`monitored for compliance with specific use levels set out in
`the Riparian Mitigation Measures.2
`
`
`2 There are two documents in the record titled “Dry Cottonwood
`Allotment Management Plan,” both undated. The Service asserts that it
`approved one of these documents in 1996, upon completion of the NEPA
`
`
`

`

`
`
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`9
`
`In 1997, the Service reissued the 1995 Riparian
`Mitigation Measures, with additional guidance about how to
`comply with them. The allowable use levels themselves
`were identical. In the 1997 version, the Service added
`several paragraphs of prefatory text, in a new section titled
`“Application,” that explained how to “apply the mitigation
`measures.” Among other propositions, the 1997 version
`states that compliance measurements must be conducted in
`areas that “represent[] the entire pasture” and cannot be
`“located in isolated areas that are heavily damaged if the
`remainder of the pasture is in better condition.” The 1995
`Riparian Mitigation Measures do not contain analogous
`language.3
`
`
`process. Plaintiffs contend that no allotment management plan was ever
`implemented at all, but that contention is refuted by the fact that
`Plaintiffs later signed and accepted grazing permits that expressly
`incorporated by reference the Allotment Management Plan that was
`“approved” in 1996. Plaintiffs do not provide any basis in their brief for
`contesting the Forest Supervisor’s conclusion as to which of the two
`versions of the Allotment Management Plan in the record is the one that
`was approved in 1996. As the Forest Supervisor found in her decision in
`this case, the Allotment Management Plan approved in 1996 “is
`consistent with the 1996 [Record of Decision concluding the NEPA
`process]” and “appropriately describes the 1996 decision . . . , including
`applicable resiliency/resistance level and vegetation type by stream.”
`
`3 In a nuance not noted by the parties, the Service issued a separate
`version of the measures in 1997, titled “Riparian Use Criteria,” that did
`not include the “Application” section. Again, the allowable use levels
`were identical to those in the 1995 Riparian Mitigation Measures. The
`Service appears to have used and referred to the two 1997 documents
`interchangeably. As the two documents and the 1995 Riparian
`Mitigation Measures all contain the same allowable use levels, which is
`what matters for present purposes, we do not distinguish in this opinion
`between the two 1997 documents. Instead, we refer to the “1997 version
`
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`10
`
`
`Following the 1996 Record of Decision, the Service
`issued a series of ten-year permits authorizing Plaintiffs to
`graze their cattle on the Dry Cottonwood Allotment. The
`first permit, issued in 1996, incorporated and required
`compliance with the 1995 Riparian Mitigation Measures. All
`the
`subsequent permits
`incorporated and
`required
`compliance with both the 1996 allotment management plan
`and the 1997 version of the mitigation measures.
`
`III.
`
`In 2009, the Service replaced the 1987 Deerlodge Forest
`Plan by issuing a new forest plan for the combined
`Beaverhead-Deerlodge National Forest. The 2009 Forest
`Plan included a livestock grazing standard, Grazing Standard
`1, that prescribed new allowable use levels for livestock
`grazing. The new levels applied by default to “livestock
`grazing operations unless or until specific long-term
`objectives, prescriptions, or allowable use levels have been
`designed through individual resource management plans or
`site-specific NEPA decisions.” For example, the new levels
`applied to “[a]ny allotment management plan lacking
`riparian management objectives and guides designed
`specifically for that allotment.”
`
`Although the allowable use levels in the 2009 Forest
`Plan are similar to the 1995 Riparian Mitigation Measures,
`they differ in key respects. The 2009 measures use two of
`the same parameters as the 1995 measures: streambank
`disturbance and riparian stubble height. But they omit the
`other two parameters contained in the 1995 measures: the
`limits on the percentage of woody browse and riparian
`
`of the mitigation measures,” a phrase that should be taken to refer to
`either or both of the 1997 documents, as the circumstances warrant.
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`herbaceous forage that livestock may consume in a grazing
`season. Conversely, the 2009 measures include three
`additional parameters not used in the 1995 measures: upland
`(non-riparian) range utilization, winter range, and riparian
`sites on streams that contain certain vulnerable fish species.
`
`11
`
`After adopting the 2009 Forest Plan, the Service
`continued to apply the 1995 Riparian Mitigation Measures
`to the Dry Cottonwood Allotment, incorporating as before
`the 1996 allotment management plan and the 1997 version
`of the mitigation measures into Plaintiffs’ grazing permits.
`Additionally,
`the Service
`issued annual operating
`instructions in 2015 and 2016 that reiterated the allowable
`use levels already incorporated in the permits.
`
`IV.
`
`In 2015, the Service conducted range inspections on the
`Dry Cottonwood Allotment. In a year-end compliance
`report, the Service noted that the allowable use levels in the
`2009 Forest Plan did not apply to the allotment because
`separate allowable use levels had been adopted in a site-
`specific NEPA decision, as reflected in the 1996 allotment
`management plan. The report concluded that “Forest Plan
`standards were met; however the North Fork had heavy use
`in areas and needs to be addressed.”
`
`the
`inspections on
`The Service conducted range
`allotment again in 2016. In November 2016, the Service sent
`a notice of noncompliance to the Plaintiffs, explaining that
`“riparian utilization and streambank disturbance standards
`were significantly exceeded at the Orofino Creek and
`Perkins Gulch sites.” The notice included a table comparing
`the allowable use levels incorporated in the permits with the
`actual livestock use in 2016. “To provide for improved
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`12
`
`resource conditions,” the notice prescribed a single set of
`allowable use levels, applicable across the allotment.
`
`Early in 2017, the Service issued annual operating
`instructions to Plaintiffs that included the allowable use
`levels prescribed in the 2016 notice of noncompliance. The
`Service issued a second notice of noncompliance in
`November 2017, finding that “one or more allowable use
`standards were exceeded.” And in December 2017, after a
`meeting with Plaintiffs, the District Ranger issued a decision
`suspending 20 percent of Plaintiffs’ grazing privileges for
`the 2018 and 2019 seasons on the Dry Cottonwood
`Allotment.
`
`Plaintiffs filed an administrative appeal, and the Forest
`Supervisor reversed the suspension of grazing privileges.
`The Forest Supervisor confirmed that the 2009 Forest Plan’s
`Grazing Standard 1 “does not apply to the Dry Cottonwood
`Allotment as that interim direction only applies to allotments
`without site-specific NEPA decisions. Site specific
`[allowable use levels] have been in place for the Dry
`Cottonwood Allotment since 1996.” The Forest Supervisor
`clarified that the 1996 NEPA process “clearly selected” the
`allowable use levels described in the 1995 Riparian
`Mitigation Measures. She found that the Service’s inclusion
`of the 1997 version of the mitigation measures in Plaintiffs’
`permits was therefore “unnecessary,” and she directed the
`District Ranger to remove the 1997 version of the mitigation
`measures from the operative permits and replace it with the
`1995 Riparian Mitigation Measures.
`
`Plaintiffs sought to recover attorney’s fees under the
`Equal Access to Justice Act (“EAJA”) for the administrative
`appeal. The Forest Supervisor denied the fee request,
`concluding that, under Service regulations, 36 C.F.R.
`§ 214.14(i), the parties to an administrative appeal bear their
`
`

`

`13
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`own expenses. Plaintiffs sought further discretionary
`substantive review within the agency, which was denied, and
`also renewed their fee request. The Forest Supervisor again
`denied the request, explaining that “[a]n appeal of a ranger’s
`decision to suspend a portion of the grazing permit is not an
`‘adjudication’ under 5 U.S.C. [§] 554 to which EAJA
`applies.”
`
`V.
`
`Plaintiffs filed suit in federal district court, claiming that
`the Service’s decision to apply the 1995 Riparian Mitigation
`Measures to the Dry Cottonwood Allotment, instead of the
`allowable use levels in the 2009 Forest Plan, violated NFMA
`and the Administrative Procedure Act (“APA”). The district
`court granted in part Plaintiffs’ motion for summary
`judgment, holding that the Service’s application of the 1995
`Riparian Mitigation Measures to the Dry Cottonwood
`Allotment was arbitrary and capricious and violated NFMA.
`
`The district court focused on the 2009 Forest Plan’s
`statement that the allowable use levels prescribed in Grazing
`Standard 1 apply to “[a]ny allotment management plan
`lacking riparian management objectives and guides designed
`specifically for that allotment.” (Emphasis added.) The court
`reasoned that the 1995 Riparian Mitigation Measures were
`specifically applied
`to, not designed for,
`the Dry
`Cottonwood Allotment. The court vacated the Forest
`Supervisor’s finding that the 1995 Riparian Mitigation
`Measures apply to the Dry Cottonwood Allotment; the
`portions of the 2016 and 2017 notices of noncompliance
`finding Plaintiffs in violation of the 1995 or 1997 allowable
`use levels; the incorporation of the 1996 allotment
`management plan into Plaintiffs’ grazing permits; and the
`Service’s annual operating instructions to Plaintiffs in 2018,
`to the extent they incorporated the 1995 Riparian Mitigation
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`14
`
`Measures. The court remanded the case to the Service to
`determine which allowable use levels apply to the Dry
`Cottonwood Allotment.
`
`The district court declined to review the Forest
`Supervisor’s determination that the administrative appeal
`was not an “adjudication” for purposes of EAJA, reasoning
`that it would be “premature” to reach that issue because the
`Forest Supervisor had not yet considered whether the
`Service’s position was “substantially justified,” as required
`if EAJA were applicable. 5 U.S.C. § 504(a)(1). The court
`directed the Service to address that question on remand.
`
`The Service timely appealed. We review the grant of
`partial summary judgment de novo. United States v.
`Washington, 971 F.3d 856, 861 (9th Cir. 2020).
`
`DISCUSSION
`
`I.
`
`A.
`
`The Service contends that the plain language of the 2009
`Forest Plan supports the Service’s application of the 1995
`Riparian Mitigation Measures to the Dry Cottonwood
`Allotment. We agree.
`
`Again, the allowable use levels prescribed in Grazing
`Standard 1 of the 2009 Forest Plan “apply to livestock
`grazing operations unless or until specific long-term
`objectives, prescriptions, or allowable use levels have been
`designed through individual resource management plans or
`site-specific NEPA decisions.” The plan explains that the
`2009 levels “apply to the following situations: Any allotment
`management plan lacking riparian management objectives
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`and guides designed specifically for that allotment,” as well
`as two additional situations not relevant here.
`
`15
`
`The district court held that there were no objectives or
`guides “designed specifically for” the Dry Cottonwood
`Allotment, because the 1995 Riparian Mitigation Measures
`were applicable to other allotments as well. In so holding,
`the court relied on the phrase “designed specifically for” in
`isolation, and interpreted it to mean that each excluded
`allotment had to have a separate mitigation plan created for
`that allotment only; no use of a template or matrix applicable
`to certain, specifically chosen allotments was allowed. The
`phrase “designed specifically for” cannot have
`the
`exceedingly narrow meaning the district court attributed to
`it.
`
`Of particular significance in interpretating the 2009
`Forest Plan’s exclusion for certain allotments is the sentence
`providing that the 2009 levels apply “unless . . . specific . . .
`allowable use levels have been designed through . . . site-
`specific NEPA decisions.” This language amplifies what is
`meant by “designed specifically for,” making clear that the
`reference includes “specific . . . allowable use levels . . .
`designed through . . . site-specific NEPA decisions.”
`
`Exactly that process occurred here: The Service made a
`site-specific NEPA decision in 1996 that applied only to the
`Dry Cottonwood Allotment. The purpose of that process was
`to “change current grazing practices by implementing [the
`1995] riparian mitigation measures” on that allotment.
`
`To reach its 1996 decision, the Service prepared a 33-
`page environmental assessment. The assessment explained
`that “[c]attle affect stream shape and function through two
`mechanisms: directly by bank trampling and indirectly by
`
`

`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`16
`
`removing streambank vegetation.” The assessment, and the
`1995 Riparian Mitigation Measures, addressed both issues.
`
`The 1995 Mitigation Measures sought to reduce bank
`trampling by setting a percentage limitation on the amount
`of streambank disturbance allowed during each grazing
`season. Once the limit was reached, ranchers would be
`required to move their cattle to another area. The specific
`limit varied depending on whether a stream reach had low,
`medium, or high resiliency. The environmental assessment
`applying the measures to the Dry Cottonwood Allotment
`explained that “[t]he amount of bank disturbance allowed
`under the riparian mitigation measures is based on the ability
`of the soils to withstand and recover from disturbance.”
`Because streams in the Dry Cottonwood Allotment “flow
`through granitic soils and are not very resilient[,] . . . the
`amount
`of
`allowable
`streambank
`disturbance
`is
`correspondingly low.”
`
`With respect to riparian vegetation, the assessment found
`that in some areas, “[b]rowse use” of “[s]hrubby riparian
`vegetation,” such as “dogwood, alder, and willow,” was
`“heavy, and vigor of the shrubs [was] low.” In other areas,
`browse use was “moderate” and the condition of the browse
`species was “fair” or “fair to good.” The 1995 Riparian
`Mitigation Measures addressed the health of riparian
`vegetation through three different parameters: “stubble
`height,” “woody browse use,” and “riparian herbaceous
`utilization.” The first and third parameters applied to
`herbaceous vegetation, and the second applied to woody
`species such as “willow, aspen, [and] dogwood.”
`
`The Service concluded that allowing continued grazing
`on the Dry Cottonwood Allotment, while implementing the
`1995 Riparian Mitigation Measures, would “result in an
`upward trend in riparian conditions.” Consistent with its
`
`

`

`17
`
`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`decision, the Service adopted an allotment management plan
`for the Dry Cottonwood Allotment incorporating the 1995
`Riparian Mitigation Measures and identifying particular
`areas to be monitored for compliance with the measures. The
`Measures themselves are variable, depending on the
`particular conditions occurring on the allotment to which the
`measures were applied,4 and the allotment management plan
`explained which parameters in the Riparian Mitigation
`Measures would apply to various locations in the allotment.
`Given the nature of the Riparian Mitigation Measures and
`the careful application of the Measures during the allotment-
`specific 1996 NEPA process, we have no difficulty
`concluding that that process fits the 2009 Forest Plan’s
`description of a situation in which “specific . . . allowable
`use levels have been designed through . . . site-specific
`NEPA decisions,” and so were “designed specifically for”
`the Dry Cottonwood Allotment.
`
`Consideration of the purpose of Grazing Standard 1 in
`the 2009 Forest Plan bolsters our conclusion. That purpose
`is “to prevent reduction of existing water quality or physical
`or biological functions of riparian-wetland areas from
`management activities.” (Emphasis added.) As the Service
`points out, applying the 2009 allowable use levels to the Dry
`Cottonwood Allotment would in some respects be less
`environmentally protective
`than applying
`the 1995
`measures. Notably, one concern discussed
`in
`the
`environmental assessment
`for
`the Dry Cottonwood
`Allotment was the health of woody riparian species such as
`willow and dogwood. Although
`the 1995 Riparian
`Mitigation Measures limit livestock use of woody forage, the
`2009 measures do not. Additionally, the 2009 measures do
`not contain a percentage limitation on livestock use of
`
`
`4 See Appendix.
`
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`2-BAR RANCH LTD. PARTNERSHIP V. USFS
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`18
`
`riparian herbaceous forage, while the 1995 measures do.
`Replacing more protective standards with less protective
`standards would be contrary to the 2009 Forest Plan’s goal
`of preserving “existing” water quality and physical and
`biological functions.
`
`B.
`
`Unlike the district court, Plaintiffs do not focus on the
`“designed specifically for” phrase in the 2009 Forest Plan.
`Instead, they rely on a different part of the 2009 Forest Plan,
`which states generally both that the standards in the 2009
`plan apply “forestwide” and that “[i]f there are additional
`objectives and standards for specific areas [they] will be
`listed in the appropriate management area in Chapter 4.”
`Plaintiffs then point to the section of chapter 4 dedicated to
`the East Deerlodge Management Area, which contains the
`Dry Cottonwood Allotment. That section identifies no
`objectives or standards in addition to the forestwide
`standards that apply to the East Deerlodge Management
`Area. Plaintiffs conclude that the Service must not have
`adopted site-specific allowable use levels for livestock
`grazing on the Dry Cottonwood Allotment, as no such levels
`are listed in the East Deerlodge Management Area section in
`chapter 4.
`
`We are unpersuaded. There is no conflict between
`applying the 2009 Forest Plan’s Grazing Standard 1
`“forestwide” and applying different allowable use levels to
`particular allotments based on site-specific processes. The
`caveat that different levels may apply to some allotments is
`already built into Grazing Standard 1, which itself states that
`the measures it contains apply to “livestock grazing
`operations unless or until specific long-term objectives,
`prescriptions, or allowable use levels have been designed
`through individual resource management plans or site-
`
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`

`2-BAR RANCH LTD. PARTNERSHIP V. USFS
`
`
`
`specific NEPA decisions.” (Emphasis added.) Applying
`Grazing Standard 1 forestwide necessarily includes applying
`the “unless or until” limitation, part of the standard,
`forestwide.
`
`19
`
`Plaintiffs also contend that the purpose of the 2009
`Forest Plan was to replace inconsistent management
`direction with uniformity. Plaintiffs point to discussions in
`the administrative record of “inconsistencies.” The text of
`Grazing Standard 1 itself belies Plaintiffs’ assertion that the
`Service’s overriding goal for grazing management was
`uniformity, as that standard expressly allows for, and
`preserves, site-specific allowable use levels that diverge
`from the default levels.
`
`Finally, Plaintiffs maintain that the Service expressly
`rejected the 1995 Riparian Mitigation Measures when it
`adopted the 2009 Forest Plan. They cite the Service’s
`decision not to retain the standards from the “Deerlodge
`Forest Plan Including INFISH-1995 Amendment.” But as
`we have explained, the 1995 Riparian Mitigation Measures
`were never incorporated into the 1987 Deerlodge Forest Plan
`and were not part of the 1995 amendment to that plan. See
`supra p. 7–8. Instead, the Service created the Mitigation
`Measures as a standalone tool to help implement the
`amended forest plan. Moreover, Plaintiffs’ insinuation that
`any application of the 1995 Riparian Mitigation Measures
`would inadequately protect riparian area function overlooks
`the fact that the application of the 1995 measures to the Dry
`Cottonwood Allotment
`is
`in
`some
`respects more
`environmentally protective than the 2009 default levels. See
`supra pp. 17–18.
`
`Given the language and structure of the 2009 Forest Plan
`and the reticulated nature of the 1995 Riparian Mitigation
`Measures, the Service properly applied the Measures to the
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`2-BAR RANCH LTD. PARTNERSHIP V. USFS
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`20
`
`Dry Cottonwood Allotment. The Service’s incorporation of
`the 1995 measures into Plaintiffs’ grazing permits was
`therefore lawful. Because the 2009 Forest Plan is not
`ambiguous in any pertinent resp