9th Circuit Rules in Favor of U.S. Forest Service in Grazing Permit Dispute

A Ninth Circuit panel reversed a District of Montana decision on Thursday, ruling that the U.S. Forest Service was correct to restrict cattle grazing in the Dry Cottonwood Allotment of Beaverhead-Deerlodge National Forest, after it reduced grazing opportunities to manage the inland native fish habitat. 

The plaintiffs, 2-Bar Ranch Limited Partnership, Broken Circle Ranch Company Inc., and R Bar N Ranch LLC, claimed that the Service should not have reduced their grazing and should not have compounded different grazing plans.  The defendants, including the U.S. Forest Service, U.S. Department of Agriculture secretary Thomas Vilsack, and other individuals associated with the forest service alleged that the grazing was harming the plants and destroying specifically stream habitats, and that the Forest Plan was clear.

Reportedly, in 1995 the Service developed the Riparian Mitigation Measures which included a new grazing standard. Each permit granted after 1996 incorporated these measures, and similar measures for grazing were incorporated into the 2009 Forest Plan for the combined Beaverhead-Deerlodge National Forest, some requirements were taken out and others were added. According to the opinion, the Service used the 1995 Riparian Mitigation Measures, along with the new Forest Plan, which the plaintiffs alleged breached laws. 

After 2016 range inspections, the Service sent notices of non-compliance to the Plaintiffs citing streambank disturbance. A final notice was sent in 2017 and then the Service suspended 20% of each of the plaintiffs’ grazing privileges, leading to the plaintiffs filing an administrative appeal, and later a lawsuit. They alleged that just the 2009 Forest Plan allowable use levels should have been used rather than the Forest Plan and the 1995 Riparian Mitigation Measures. 

The district court sided with the plaintiff, determining that these measures were “arbitrary and capricious” and violated the National Forest Management Act. The Ninth Circuit panel, however, ruled that the Service had accurately applied the 2009 Forest Plan and the 1995 Riparian Mitigation Measures and that they were right to take away the plaintiffs’ grazing permits. They said that the language of the 2009 Forest Plan supported including the 1995 measures. 

“We conclude that the Service lawfully applied a particular set of standards for protecting stream habitats from the effects of cattle grazing, the 1995 Riparian Mitigation Measures, to Plaintiffs’ grazing permits,” Circuit Judge Marsha Berzon stated in the opinion, reversing the partial summary judgment given to the plaintiffs by the District of Montana. 

The opinion explained that the Service is responsible for balancing uses of the forest, and develops allotment management plans when it chooses to begin a grazing program and issues individual permits. The permits include specific conditions and typically expire after 10 years, however, the Service can adjust the amount of grazing allowed on a year by year basis. 

The matter was remanded to the District of Montana, with instructions from the panel to grant summary judgment to the defendants. The panel also ruled that the plaintiffs were not eligible for attorneys fees for the appeal. 

The plaintiffs were represented by Bloomquist Law Firm and the defendants by the U.S. Department of Justice.