United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.
October 3, 2017, Magistrate Judge Paul Papak issued his
Findings and Recommendation (F&R) , recommending
that Plaintiffs' Motion for Summary Judgment  should
be DENIED, Federal Defendants' Amended Motion for Summary
Judgment  should be GRANTED, Intervenor-Defendants'
Corrected Cross-Motion for Summary Judgment  should be
GRANTED, and this action should be dismissed with prejudice.
The F&R DENIED as moot Intervenor-Defendants'
Corrected Motion to Strike Plaintiffs' Extra-Record
Filings . Plaintiffs and Federal Defendants objected
[489, 490]. Plaintiffs, Federal Defendants, and
Intervenor-Defendants responded [495, 496, 497]. I held oral
argument on April 5, 2018 on the parties' objections and
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
review, I agree with Judge Papak's recommendations and I
ADOPT the F&R  as my own opinion. I write separately
to clarify certain issues raised in the parties'
objections and at oral argument.
Challenge to Agency Pattern, Practice, or Policy
F&R concludes that Plaintiffs' challenges to the
Forest Service's final grazing decisions on the seven
allotments are not programmatic challenges and are therefore
justiciable. F&R  at 10-11. Federal Defendants
object to this conclusion and urge the Court to instead
conclude that Plaintiffs are challenging the Forest
Service's grazing “program, ” rather than
individual decisions that constitute final agency actions.
Fed. Defs. Objections  at 9-11. Plaintiffs argue they
are challenging a series of final agency actions that are
justiciable, but agree that the F&R uses some
“programmatic” language. Pls. Response  at
4-5. At oral argument, Federal Defendants argued that the
F&R's conclusion on this issue was problematic for
two reasons: first, because of the sheer number of agency
decisions challenged by Plaintiffs (over 100), and second,
because their operative Complaint effectively challenges all
agency decisions within a program.
Plaintiffs' challenge is not troubling. This case spans a
fifteen-year history, which required Plaintiffs to add
challenges over the years to many agency decisions on these
seven allotments. And there is no reason Plaintiffs'
decision to challenge a large number of agency decisions in
one lawsuit, versus multiple lawsuits, is per se problematic
under the Administrative Procedure Act (APA).
with the F&R, however, that the programmatic issue is a
“close question” under Lujan v. National
Wildlife Federation, 497 U.S. 871 (1990). As the Supreme
Court held in Lujan, a party may not challenge an
entire program under the APA, but instead “must direct
its attack against some particular ‘agency action'
that causes it harm.” Id. at 891. At oral
argument, the parties agreed that a plaintiff's claims
challenging every agency decision within a grazing program
could theoretically be barred by Lujan. See
Id. (“[The] respondent cannot seek
wholesale improvement of this program by court
decree, rather than in the offices of the Department or the
halls of Congress, where programmatic improvements are
normally made.”). But Federal Defendants conceded at
oral argument that significant portions of the Malheur
National Forest would be left untouched by any decision in
this case. And by challenging individual agency actions such
as grazing permits and annual operating instructions (AOIs),
the operative Complaint in this case complies with
Lujan's requirement that plaintiffs challenge
specific agency actions. See Oregon Nat'l Desert
Ass'n v. U.S. Forest Serv., 465 F.3d 977, 990 (9th
Cir. 2006) (concluding that “an AOI is a final agency
action subject to judicial review under § 706(2)(A) of
the APA.”). Furthermore, the Ninth Circuit has held
that plaintiffs may seek review of broader practices by
challenging a specific agency action tied to those practices.
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d
1059, 1067 (9th Cir. 2002) (“[I]n order to win scrutiny
of the Forest Service's forest-wide management practices,
Neighbors must challenge a specific, final agency action, the
lawfulness of which hinges on these practices.”).
Plaintiffs here challenge over 100 AOI and permit decisions,
each of these decisions on its own is a final agency action.
Framing this as one suit challenging numerous permitting and
other decisions, I agree with the F&R that Plaintiffs may
challenge the Forest Service's decisions to issue dozens
of permits and/or AOIs.
The Forest Service's Discretion to Issue Allotment
Management Plans (AMPs)
argue the Forest Service's implementing regulations
require it to prepare and update AMPs, and by failing to do
so, the Forest Service violated the APA because it unlawfully
withheld or delayed required agency action. Pls. Objections
 at 29-30. Plaintiffs do not dispute that 43 U.S.C.
§ 1752 gives the Secretary broad discretion on whether
and when to prepare AMPs. See 43 U.S.C. §
1752(d) (“All permits and leases for domestic livestock
grazing issued pursuant to this section may incorporate an
allotment management plan developed by the Secretary
concerned.”); id. § 1752(i) (specifying
that the Secretary has discretion for the “priority and
timing” of environmental analyses related to “a
grazing allotment, permit, or lease”). But Plaintiffs
argue that the Forest Service relinquished that discretion by
promulgating 36 C.F.R. § 222.2(b). See 36
C.F.R. § 222.2(b) (“Each allotment will be
analyzed, . . . and an allotment management plan
developed.”). The F&R concludes that
Plaintiffs' AMP challenges are not justiciable, because
43 U.S.C. § 1752 gives the Forest Service ultimate
discretion on AMPs. F&R  at 15.
with the F&R's recommendation on this issue. I write
separately to note that at oral argument, Federal Defendants
persuasively argued that the Court should defer under
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) and Auer v.
Robbins, 519 U.S. 452 (1997), to the Forest
Service's reasonable interpretations of the governing
statute and related regulations. See 43 U.S.C.
§ 1752; 36 C.F.R. § 222.2(b). The Forest Service
interprets 43 U.S.C. § 1752 and 36 C.F.R. §
222.2(b) to give the agency discretion about when and how to
adopt AMPs. In light of 43 U.S.C. § 1752, I conclude
that the Forest Service's interpretation of 36 C.F.R.
§ 222.2(b) is reasonable. See Christopher v.
SmithKline Beecham Corp., 56 ...