On May 1, the 9th Circuit settled a 17-year legal battle brought by the Center for Biological Diversity, Oregon Natural Desert Association, and a group of Oregon cattle ranchers against the United States Forest Service requesting the court to determine the appropriate standard to use when reviewing permits allowing grazing activity near endangered fish habitats. The court ultimately affirmed the lower court’s grant of summary judgment in favor of the defendant.
The 9th Circuit determined that grazing permits constituted “final agency actions subject to review pursuant to the APA” and therefore, a permit shall only be overturned if permissions granted by said permit represents an “arbitrary and capricious” action by the Defendant.
The court held that, in the context of federal grazing permits in national parks, a permit can only be “arbitrary and capricious” if the record reflects a clear error in the agency’s judgment by granting said permit, taking into account the reality that the scientific backdrop of any federal grazing permit required the court to accord substantial deference to the defendant’s scientific expertise when reviewing associated agency actions.
The plaintiffs challenged the grazing permits under the Administrative Procedures Act on procedural and substantive grounds. On the procedural front, the plaintiffs asserted the Forest Service lacked appropriate procedures for determining whether to grant a grazing permit. Specifically, Plaintiffs’ claimed that the grazing permits must only be granted via a procedure requiring any granted grazing permit to be accompanied by a written contemporaneous document proving that “each grazing decision it makes is consistent with the Forest Plan,” the managerial document required by the National Forest Management Act (NFMA) for each national forest managed by the Forest Service.
The court agreed that the Forest Plan must provide details for how the Forest Service tends to “provide for and sustainably balance multiple uses of the forest including outdoor recreation, range, timber, watershed, wildlife, fish, and wilderness uses” and then only grant a permit once the Defendant can “analyze and show” that the permit conforms to said plan. However, the court disagreed with the argument that this “analysis and showing” can only be accomplished in a separate written document, because no such requirement was “obligated by statute, regulation, or caselaw” and, as such, the court lacked grounds to “impose [additional] procedural requirements not enumerated” in the NFMA.
The court then moved to plaintiffs’ substantive challenge to the grazing permits. They argued that the defendant failed to “analyze and show” that the grazing permits met the provisions of the Forest Plan for the Malheur National Forest concerning measures, Standards GM-1 and Standard 5, designed to protect endangered fish in the forest, such as the bull trout, cutthroat trout, and rainbow/redband trout.
Standards GM-1 and Standard 5 require the agency to restrict grazing near riverbanks in the event that such grazing resulted in the reduction of riparian vegetation necessary to cool waters to prevent further endangerment of aforementioned endangered fish.
The court disagreed with the Plaintiffs’ substantive challenge due to the administrative record reflecting that the agency engaged in actions such as (1) monitoring “riparian habitat conditions at local and watershed scales”; (2) considering “modification and suspension of grazing, before, after, and during each year’s grazing season”; (3) conducting “annual monitoring in each allotment of several endpoint indicators (including stubble height, shrub browse, bank alteration and upland utilization)” of river bank eradication; and (4) preparing regular biological assessments.
Such actions provided enough proof for the court to determine that the grazing permits failed to be “arbitrary or capricious” since such actions, in light of the evidence presented, failed to reflect a “clear error in judgment” by the agency given the high deference accorded when conducting a substantive analysis within areas of regulatory action involving scientific expertise.