Oregon Natural Desert Association v. United States Forest Service
465 F.3d 977 (9th Cir. 2006)
Under Federal Land Policy
and Management Act (FLPMA), the US Forest Service granted permits for ranchers
to graze their cattle on public land.
The total number of permits
per area was calculated in an Allotment Management Plan (AMP).
Once a permit was given, the
rancher had to negotiate ever year with the Forest Service to get their
Annual Operating Instructions (AOI).
AOIs were issued annually,
and allowed the Forest Service some flexibility in how much grazing they
would allow. If there was a drought or some other issue, the Forest
Service could limit the amount of grazing a rancher could do, even if
they had a permit to do much more.
Turns out, a rancher is
almost never allowed to go up to the limit set in the permit. The AOIs
often include strong restrictions.
Environmental groups (led by
ONDA) sued the Forest Service on the basis of the AOIs that they were
negotiating in an area of Oregon.
ONDA argued that the Forest
Service was allowing grazing in a protected area.
The Forest Service made a
procedural argument that the AOIs did not constitute a final agency
action, and were therefore not
See the Administrative
Procedures Act (APA) (5 U.S.C. §§702-706).
The Forest Service argued
that an AOI merely implemented other decisions that the Forest Service
The Trial Court dismissed the
case. ONDA appealed.
The Trial Court found that
the AOIs were indeed Agency actions.
However, the Court found
that the actions were not final agency actions and so were not reviewable based on 5
The Appellate Court reversed.
The Appellate Court found
that AOIs were final agency actions.
The Court found that an AOI
is a discrete, site-specific action representing the Forest Service's
last word from which binding obligations flow.
The Court noted that if a
permittee does not comply with the AOI, they can face sanctions from
the Forest Service.
In a dissent, it was argued
that the AMP is the final agency action, and that's where ONDA should be suing. The dissent felt that if
every AOI could lead to litigation, the courts would get jammed up and the
cattle would never get to eat.
Since most of the key Federal
decisions involving livestock grazing rights are made in AOIs, this is
probably a better place for judicial review, as opposed to the very
general AMPs that only contain broad policy decisions and are not
In addition, the AMPs are
granted and reviewed only once every 10 years. If a group could only sue
based on the AMP, then a significant change to an AMP made in an AOI
would not be judicially reviewable for up to 10 years!