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 reviewable.
      • 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 already made
  • 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 U.S.C. 706(2)(A).
  • 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 fact-specific.
    • 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!