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Oregon Natural Desert Association v. U.S. Forest Service

United States Court of Appeals for the Ninth Circuit
465 F.3d 977 (2006)


The United States Forest Service (USFS) (defendant) issued annual operating instructions (AOIs) to livestock-grazing permittees prior to the beginning of each grazing season. AOIs consisted of signed agreements between the USFS and permittees. These agreements included annual grazing limitations and instructed permittees on how allotment management plans (AMPs), forest plans, and grazing permits would affect grazing operations. AOIs were distinct from AMPs, forest plans, and grazing permits, as AOIs were issued annually and were therefore responsive to unanticipated conditions, such as drought. In the event of a permittee’s noncompliance with the permit terms, the USFS was authorized to issue a non-compliance notice to the permittee. The Oregon Natural Desert Association (ONDA) (plaintiff) challenged the USFS’s AOIs in district court, claiming that AOIs were subject to review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 702-06, as final agency actions. The district court dismissed ONDA’s claims, holding that AOIs were not final agency actions. On ONDA’s appeal, the USFS argued that AOIs were not final agency actions because (1) AOIs implemented decisions already made by the USFS, including the AMPs, forest plan, and grazing permits; and (2) in the absence of AOIs, the permit terms and conditions authorized permittees to graze livestock.

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