FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
2-BAR RANCH LIMITED No. 19-35351
PARTNERSHIP, a Montana limited
partnership; BROKEN CIRCLE RANCH D.C. No.
COMPANY, INC., a Montana profit 2:18-cv-00033-
corporation; R BAR N RANCH, LLC, SHE
a Montana limited liability
corporation,
Plaintiffs-Appellees, OPINION
Vv.
UNITED STATES FOREST SERVICE, an
Agency of the United States
Department of Agriculture, THOMAS
J. VILSACK, in his official capacity as
Secretary of the United States
Department of Agriculture;
VICTORIA CHRISTIANSEN, in her
official capacity as Chief of the
United States Forest Service;
LEANNE MARTEN; CHERI FORD, in
her official capacity as Forest
Supervisor for the Beaverhead-
Deerlodge National Forest;
CAMERON RASOR, in his official
capacity as District Ranger for the
Pintler Ranger District in the
Beaverhead-Deerlodge National
Forest,
Defendants-Appellants.
2 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted June 4, 2020
Portland, Oregon
Filed May 6, 2021
Before: Marsha S. Berzon and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves,* Judge.
Opinion by Judge Berzon
SUMMARY™
Grazing Permits / Equal Access to Justice Act
The panel reversed the district court’s partial grant of
summary judgment to Plaintiff cattle ranchers in their action
challenging the U.S. Forest Service’s decision to apply 1995
Riparian Mitigation Measures to the Dry Cottonwood
Allotment in the Beaverhead-Deerlodge National Forest,
where plaintiffs had grazing permits for their cattle; held that
Plaintiffs were not entitled to attorneys’ fees under the Equal
Access to Justice Act (SEAJA”) for their administrative
* The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
™“ This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
2-BAR RANCH LTD. PARTNERSHIP V. USFS 3
appeal; and remanded with instructions to grant summary
judgment to the Service.
In 1995, the Service amended some forest plans,
including the 1987 Deerlodge Forest Plan. To implement
the Plan’s new grazing standard, the Service developed a set
of mitigation measures (the “1995 Riparian Mitigation
Measures’) that applied to specific allotments, including the
Dry Cottonwood Allotment. In 2009, the Service replaced
the 1987 Deerlodge Forest Plan with the 2009 Forest Plan,
and continued to apply the 1995 Riparian Mitigation
Measures. The district court held that the Service’s
application of the 1995 Riparian Mitigation Measures to the
Dry Cottonwood Allotment was arbitrary and capricious and
violated the National Forest Management Act.
The panel held that the plain language of the 2009 Forest
Plan supported the Service’s application of the 1995
Riparian Mitigation Measures to the Dry Cottonwood
Allotment, and to Plaintiffs’ grazing permits. The Service’s
incorporation of the 1995 measures into Plaintiffs’ grazing
permits was therefore lawful. Because the 2009 Forest Plan
was not ambiguous in any pertinent respect, the panel did not
reach the Service’s alternative argument that the panel
should defer to its regulatory interpretation.
EAJA provides that an agency that conducts an
adversary adjudication shall award to a prevailing party fees
and other expenses incurred in connection with that
proceeding. An agency proceeding is an “adversary
adjudication” for EAJA purposes only if it is actually
governed by the Administrative Procedures Act (“APA”)’s
formal adjudication requirements, as opposed to similar
requirements of another statute or regulation. 5 U.S.C. § 554
delineates the scope of proceedings governed by the formal
4 2-BAR RANCH LTD. PARTNERSHIP V. USFS
adjudication requirements of the APA. The panel held that
the Service’s administrative appeal process was not
governed by Section 554. The panel held further that the
administrative appeal here was not an “adversary
adjudication” for purposes of EAJA. The panel concluded
that the Service properly denied Plaintiffs’ request for
attorneys’ fees for their administrative appeal.
COUNSEL
Erika B. Kranz (argued) and David Gunter, Attorneys; Eric
Grant, Deputy Assistant Attorney General; Environment and
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Steven Vaden, General Counsel;
Elise Foster, Attorney; United States Department of
Agriculture, Washington, D.C.; for Defendants-Appellants.
Calli J. Michaels (argued) and John E. Bloomquist,
Bloomquist Law Firm P.C., Dillon, Montana, for Plaintiffs-
Appellees.
Abigail J. St. Lawrence, Abigail St. Lawrence Law Firm
P.C., Helena, Montana, for Amici Curiae Rocky Mountain
Stockgrowers Association and Public Lands Council.
2-BAR RANCH LTD. PARTNERSHIP V. USFS 5
OPINION
BERZON, Circuit Judge:
The U.S. Forest Service and other federal defendants
(collectively, “the Service”) appeal the judgment entered by
the district court after the court’s grant of partial summary
judgment to the plaintiff cattle ranchers (collectively,
“Plaintiffs”). 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.
Additionally, Plaintiffs were not entitled to attorney’s fees
under the Equal Access to Justice Act for their
administrative appeal. We therefore reverse the district
court’s grant of partial summary judgment to Plaintiffs and
remand with instructions to grant summary judgment to the
Service.
BACKGROUND
L
Plaintiffs 2-Bar Ranch Limited Partnership, R Bar N
Ranch, LLC, and Broken Circle Ranch Company, Inc. hold
or held permits to graze cattle on the Dry Cottonwood
Allotment, which is part of the Beaverhead-Deerlodge
National Forest in Montana.! The U.S. Forest Service
manages the forest under the multiple-use, sustained-yield
mandate prescribed by the National Forest Management Act
(“NFMA”), which requires the Service to balance uses
' Broken Circle Ranch no longer holds a permit but asserts an
interest in the appeal to the extent it affects its entitlement to attorney’s
fees from the administrative proceeding.
6 2-BAR RANCH LTD. PARTNERSHIP V. USFS
including “outdoor recreation, range, timber, watershed,
wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1).
“NFMA envisions a two-stage approach to forest
planning.” /nland Empire Pub. Lands Council v. U.S. Forest
Serv., 88 F.3d 754, 757 (9th Cir. 1996). At the first stage, the
Service develops a forest plan, along with an environmental
impact statement as required by the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4332. Forest plans are
broad, programmatic documents that “guide sustainable,
integrated ... management of the resources within the plan
area in the context of the broader landscape.” 36 C.F.R.
§ 219.1(b). “Direct implementation of the [forest plan]
occurs at a second stage, when individual site-specific
projects are proposed and assessed.” /nland Empire, 88 F.3d
at 757 (alteration and citation omitted). “These site-specific
projects must be consistent with” the forest plan. /d.
The Service also takes a multistage approach to
implementing its grazing program. When it decides to allow
grazing in a particular area of a national forest, it develops
an allotment management plan for that area. See 43 U.S.C.
§ 1752(d); 36 C.F.R. § 222.2(b). An allotment management
plan “prescribes the manner in, and extent to, which
livestock operations will be conducted ... to meet the
multiple-use, sustained-yield, economic and other needs and
objectives as determined for the lands” involved. 43 U.S.C.
§ 1702(k)(1); 36 CFR. § 222.1(b)(2).
The Service authorizes grazing on an allotment by
issuing individual grazing permits to ranchers. See 43 U.S.C.
§ 1752(a). Permits, which typically last for ten years, specify
the terms and conditions of the grazing allowed. /d.; see
36 C.F.R. § 222.3(c). The Service may adjust the amount of
grazing allowed each year by issuing annual operating
instructions. See Forest Service Handbook 2209.13, § 94.3.
2-BAR RANCH LTD. PARTNERSHIP V. USFS 7
“Whereas the [allotment management plan] relates the
directives of the applicable forest plan to the individual
grazing allotment, and the grazing permit sets grazing
parameters through a ten-year period, the [annual operating
instructions] annually convey[] these more long-term
directives into instructions to the permittee for annual
operations.” Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
465 F.3d 977, 980 (9th Cir. 2006).
II.
Between 1987 and 2009, all permits for grazing on the
Dry Cottonwood Allotment were governed by the 1987
Deerlodge Forest Plan. In 2009, the Service issued a new
forest plan for the combined Beaverhead-Deerlodge
National Forest (the “2009 Forest Plan”). The 2009 Forest
Plan, discussed further below, remains in effect today.
The 1987 Deerlodge Forest Plan set “allowable use
levels” for livestock grazing of riparian vegetation.
Depending on the condition of the vegetation in a particular
area and the type of grazing contemplated, the plan limited
the percentage of riparian shrubs, bluegrass, and sedge that
livestock could consume.
In 1995, the Service amended some forest plans,
including the 1987 Deerlodge Forest Plan, by adopting a new
approach, the Inland Native Fish Strategy, to managing
habitat for inland native fish. The amendment added a new
grazing standard to the forest plan, directing the Service to
“[mlodify grazing practices ... that retard or prevent
attainment” of certain riparian management objectives. The
objectives related to stream characteristics such as water
temperature and bank stability.
8 2-BAR RANCH LTD. PARTNERSHIP V. USFS
The 1995 amendment did not alter the 1987 Forest Plan’s
existing allowable use levels for livestock grazing of riparian
vegetation. But to implement the plan’s new grazing
standard, the Service developed a set of mitigation measures
(the “1995 Riparian Mitigation Measures”) that could be
applied to specific allotments. See Appendix. The 1995
Riparian Mitigation Measures “use four measurable
parameters to determine the appropriate level of livestock
grazing in riparian areas”: “streambank disturbance,”
“stubble height,” “woody browse use,” and “riparian
herbaceous utilization.” The measures are presented in the
form of a matrix prescribing different allowable use levels
for each parameter, depending on the physical characteristics
of a riparian area and the types of vegetation present. The
Service did not incorporate the 1995 Riparian Mitigation
Measures into the 1987 Forest Plan itself but instead applied
them to designated allotments, on a case-by-case basis.
The Dry Cottonwood Allotment was one such allotment.
In 1995, the Service prepared an environmental assessment
under NEPA to determine whether to “change current
grazing practices” on the Dry Cottonwood Allotment “by
implementing riparian mitigation measures to maintain or
move toward desired riparian conditions.” In 1996, the
Service issued a Record of Decision applying the 1995
Riparian Mitigation Measures to the Dry Cottonwood
Allotment. The Service also produced an allotment
management plan specifying four areas that would be
monitored for compliance with specific use levels set out in
the Riparian Mitigation Measures.”
2 There are two documents in the record titled “Dry Cottonwood
Allotment Management Plan,” both undated. The Service asserts that it
approved one of these documents in 1996, upon completion of the NEPA
2-BAR RANCH LTD. PARTNERSHIP V. USFS 9
In 1997, the Service reissued the 1995 Riparian
Mitigation Measures, with additional guidance about how to
comply with them. The allowable use levels themselves
were identical. In the 1997 version, the Service added
several paragraphs of prefatory text, in a new section titled
“Application,” that explained how to “apply the mitigation
measures.” Among other propositions, the 1997 version
states that compliance measurements must be conducted in
areas that “represent[] the entire pasture” and cannot be
“located in isolated areas that are heavily damaged if the
remainder of the pasture is in better condition.” The 1995
Riparian Mitigation Measures do not contain analogous
language?
process. Plaintiffs contend that no allotment management plan was ever
implemented at all, but that contention is refuted by the fact that
Plaintiffs later signed and accepted grazing permits that expressly
incorporated by reference the Allotment Management Plan that was
“approved” in 1996. Plaintiffs do not provide any basis in their brief for
contesting the Forest Supervisor’s conclusion as to which of the two
versions of the Allotment Management Plan in the record is the one that
was approved in 1996. As the Forest Supervisor found in her decision in
this case, the Allotment Management Plan approved in 1996 “is
consistent with the 1996 [Record of Decision concluding the NEPA
process]” and “appropriately describes the 1996 decision. . . , including
applicable resiliency/resistance level and vegetation type by stream.”
3 In a nuance not noted by the parties, the Service issued a separate
version of the measures in 1997, titled “Riparian Use Criteria,” that did
not include the “Application” section. Again, the allowable use levels
were identical to those in the 1995 Riparian Mitigation Measures. The
Service appears to have used and referred to the two 1997 documents
interchangeably. As the two documents and the 1995 Riparian
Mitigation Measures all contain the same allowable use levels, which is
what matters for present purposes, we do not distinguish in this opinion
between the two 1997 documents. Instead, we refer to the “1997 version
10 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Following the 1996 Record of Decision, the Service
issued a series of ten-year permits authorizing Plaintiffs to
graze their cattle on the Dry Cottonwood Allotment. The
first permit, issued in 1996, incorporated and required
compliance with the 1995 Riparian Mitigation Measures. All
the subsequent permits incorporated and _ required
compliance with both the 1996 allotment management plan
and the 1997 version of the mitigation measures.
II.
In 2009, the Service replaced the 1987 Deerlodge Forest
Plan by issuing a new forest plan for the combined
Beaverhead-Deerlodge National Forest. The 2009 Forest
Plan included a livestock grazing standard, Grazing Standard
1, that prescribed new allowable use levels for livestock
grazing. The new levels applied by default to “livestock
grazing operations unless or until specific long-term
objectives, prescriptions, or allowable use levels have been
designed through individual resource management plans or
site-specific NEPA decisions.” For example, the new levels
applied to “[a]ny allotment management plan lacking
riparian management objectives and guides designed
specifically for that allotment.”
Although the allowable use levels in the 2009 Forest
Plan are similar to the 1995 Riparian Mitigation Measures,
they differ in key respects. The 2009 measures use two of
the same parameters as the 1995 measures: streambank
disturbance and riparian stubble height. But they omit the
other two parameters contained in the 1995 measures: the
limits on the percentage of woody browse and riparian
of the mitigation measures,” a phrase that should be taken to refer to
either or both of the 1997 documents, as the circumstances warrant.
2-BAR RANCH LTD. PARTNERSHIP V. USFS 11
herbaceous forage that livestock may consume in a grazing
season. Conversely, the 2009 measures include three
additional parameters not used in the 1995 measures: upland
(non-riparian) range utilization, winter range, and riparian
sites on streams that contain certain vulnerable fish species.
After adopting the 2009 Forest Plan, the Service
continued to apply the 1995 Riparian Mitigation Measures
to the Dry Cottonwood Allotment, incorporating as before
the 1996 allotment management plan and the 1997 version
of the mitigation measures into Plaintiffs’ grazing permits.
Additionally, the Service issued annual operating
instructions in 2015 and 2016 that reiterated the allowable
use levels already incorporated in the permits.
IV.
In 2015, the Service conducted range inspections on the
Dry Cottonwood Allotment. In a year-end compliance
report, the Service noted that the allowable use levels in the
2009 Forest Plan did not apply to the allotment because
separate allowable use levels had been adopted in a site-
specific NEPA decision, as reflected in the 1996 allotment
management plan. The report concluded that “Forest Plan
standards were met; however the North Fork had heavy use
in areas and needs to be addressed.”
The Service conducted range inspections on the
allotment again in 2016. In November 2016, the Service sent
a notice of noncompliance to the Plaintiffs, explaining that
“riparian utilization and streambank disturbance standards
were significantly exceeded at the Orofino Creek and
Perkins Gulch sites.” The notice included a table comparing
the allowable use levels incorporated in the permits with the
actual livestock use in 2016. “To provide for improved
12 2-BAR RANCH LTD. PARTNERSHIP V. USFS
resource conditions,” the notice prescribed a single set of
allowable use levels, applicable across the allotment.
Early in 2017, the Service issued annual operating
instructions to Plaintiffs that included the allowable use
levels prescribed in the 2016 notice of noncompliance. The
Service issued a second notice of noncompliance in
November 2017, finding that “one or more allowable use
standards were exceeded.” And in December 2017, after a
meeting with Plaintiffs, the District Ranger issued a decision
suspending 20 percent of Plaintiffs’ grazing privileges for
the 2018 and 2019 seasons on the Dry Cottonwood
Allotment.
Plaintiffs filed an administrative appeal, and the Forest
Supervisor reversed the suspension of grazing privileges.
The Forest Supervisor confirmed that the 2009 Forest Plan’s
Grazing Standard 1 “does not apply to the Dry Cottonwood
Allotment as that interim direction only applies to allotments
without site-specific NEPA decisions. Site specific
[allowable use levels] have been in place for the Dry
Cottonwood Allotment since 1996.” The Forest Supervisor
clarified that the 1996 NEPA process “clearly selected” the
allowable use levels described in the 1995 Riparian
Mitigation Measures. She found that the Service’s inclusion
of the 1997 version of the mitigation measures in Plaintiffs’
permits was therefore “unnecessary,” and she directed the
District Ranger to remove the 1997 version of the mitigation
measures from the operative permits and replace it with the
1995 Riparian Mitigation Measures.
Plaintiffs sought to recover attorney’s fees under the
Equal Access to Justice Act (‘EAJA”) for the administrative
appeal. The Forest Supervisor denied the fee request,
concluding that, under Service regulations, 36 C.F.R.
§ 214.14(a), the parties to an administrative appeal bear their
2-BAR RANCH LTD. PARTNERSHIP V. USFS 13
own expenses. Plaintiffs sought further discretionary
substantive review within the agency, which was denied, and
also renewed their fee request. The Forest Supervisor again
denied the request, explaining that “[a]n appeal of a ranger’s
decision to suspend a portion of the grazing permit is not an
‘adjudication’ under 5 U.S.C. [§] 554 to which EAJA
applies.”
V.
Plaintiffs filed suit in federal district court, claiming that
the Service’s decision to apply the 1995 Riparian Mitigation
Measures to the Dry Cottonwood Allotment, instead of the
allowable use levels in the 2009 Forest Plan, violated NFMA
and the Administrative Procedure Act (“APA”). The district
court granted in part Plaintiffs’ motion for summary
judgment, holding that the Service’s application of the 1995
Riparian Mitigation Measures to the Dry Cottonwood
Allotment was arbitrary and capricious and violated NFMA.
The district court focused on the 2009 Forest Plan’s
statement that the allowable use levels prescribed in Grazing
Standard 1 apply to “[a]ny allotment management plan
lacking riparian management objectives and guides designed
specifically for that allotment.” (Emphasis added.) The court
reasoned that the 1995 Riparian Mitigation Measures were
specifically applied to, not designed for, the Dry
Cottonwood Allotment. The court vacated the Forest
Supervisor’s finding that the 1995 Riparian Mitigation
Measures apply to the Dry Cottonwood Allotment; the
portions of the 2016 and 2017 notices of noncompliance
finding Plaintiffs in violation of the 1995 or 1997 allowable
use levels; the incorporation of the 1996 allotment
management plan into Plaintiffs’ grazing permits; and the
Service’s annual operating instructions to Plaintiffs in 2018,
to the extent they incorporated the 1995 Riparian Mitigation
14 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Measures. The court remanded the case to the Service to
determine which allowable use levels apply to the Dry
Cottonwood Allotment.
The district court declined to review the Forest
Supervisor’s determination that the administrative appeal
was not an “adjudication” for purposes of EAJA, reasoning
that it would be “premature” to reach that issue because the
Forest Supervisor had not yet considered whether the
Service’s position was “substantially justified,” as required
if EAJA were applicable. 5 U.S.C. § 504(a)(1). The court
directed the Service to address that question on remand.
The Service timely appealed. We review the grant of
partial summary judgment de novo. United States vy.
Washington, 971 F.3d 856, 861 (9th Cir. 2020).
DISCUSSION
L
A.
The Service contends that the plain language of the 2009
Forest Plan supports the Service’s application of the 1995
Riparian Mitigation Measures to the Dry Cottonwood
Allotment. We agree.
Again, the allowable use levels prescribed in Grazing
Standard 1 of the 2009 Forest Plan “apply to livestock
grazing operations unless or until specific long-term
objectives, prescriptions, or allowable use levels have been
designed through individual resource management plans or
site-specific NEPA decisions.” The plan explains that the
2009 levels “apply to the following situations: Any allotment
management plan lacking riparian management objectives
2-BAR RANCH LTD. PARTNERSHIP V. USFS 15
and guides designed specifically for that allotment,” as well
as two additional situations not relevant here.
The district court held that there were no objectives or
guides “designed specifically for’ the Dry Cottonwood
Allotment, because the 1995 Riparian Mitigation Measures
were applicable to other allotments as well. In so holding,
the court relied on the phrase “designed specifically for” in
isolation, and interpreted it to mean that each excluded
allotment had to have a separate mitigation plan created for
that allotment only; no use of a template or matrix applicable
to certain, specifically chosen allotments was allowed. The
phrase “designed specifically for’ cannot have the
exceedingly narrow meaning the district court attributed to
it.
Of particular significance in interpretating the 2009
Forest Plan’s exclusion for certain allotments is the sentence
providing that the 2009 levels apply “unless... specific...
allowable use levels have been designed through ... site-
specific NEPA decisions.” This language amplifies what is
meant by “designed specifically for,” making clear that the
reference includes “specific ... allowable use levels ...
designed through . . . site-specific NEPA decisions.”
Exactly that process occurred here: The Service made a
site-specific NEPA decision in 1996 that applied only to the
Dry Cottonwood Allotment. The purpose of that process was
to “change current grazing practices by implementing [the
1995] riparian mitigation measures” on that allotment.
To reach its 1996 decision, the Service prepared a 33-
page environmental assessment. The assessment explained
that “[c]attle affect stream shape and function through two
mechanisms: directly by bank trampling and indirectly by
16 2-BAR RANCH LTD. PARTNERSHIP V. USFS
removing streambank vegetation.” The assessment, and the
1995 Riparian Mitigation Measures, addressed both issues.
The 1995 Mitigation Measures sought to reduce bank
trampling by setting a percentage limitation on the amount
of streambank disturbance allowed during each grazing
season. Once the limit was reached, ranchers would be
required to move their cattle to another area. The specific
limit varied depending on whether a stream reach had low,
medium, or high resiliency. The environmental assessment
applying the measures to the Dry Cottonwood Allotment
explained that “[t]he amount of bank disturbance allowed
under the riparian mitigation measures is based on the ability
of the soils to withstand and recover from disturbance.”
Because streams in the Dry Cottonwood Allotment “flow
through granitic soils and are not very resilient[,] ... the
amount of allowable streambank disturbance is
correspondingly low.”
With respect to riparian vegetation, the assessment found
that in some areas, “[b]rowse use” of “[s]hrubby riparian
vegetation,” such as “dogwood, alder, and willow,” was
“heavy, and vigor of the shrubs [was] low.” In other areas,
browse use was “moderate” and the condition of the browse
species was “fair” or “fair to good.” The 1995 Riparian
Mitigation Measures addressed the health of riparian
vegetation through three different parameters: “stubble
height,” “woody browse use,” and “riparian herbaceous
utilization.” The first and third parameters applied to
herbaceous vegetation, and the second applied to woody
species such as “willow, aspen, [and] dogwood.”
The Service concluded that allowing continued grazing
on the Dry Cottonwood Allotment, while implementing the
1995 Riparian Mitigation Measures, would “result in an
upward trend in riparian conditions.” Consistent with its
2-BAR RANCH LTD. PARTNERSHIP V. USFS 17
decision, the Service adopted an allotment management plan
for the Dry Cottonwood Allotment incorporating the 1995
Riparian Mitigation Measures and identifying particular
areas to be monitored for compliance with the measures. The
Measures themselves are variable, depending on the
particular conditions occurring on the allotment to which the
measures were applied,* and the allotment management plan
explained which parameters in the Riparian Mitigation
Measures would apply to various locations in the allotment.
Given the nature of the Riparian Mitigation Measures and
the careful application of the Measures during the allotment-
specific 1996 NEPA process, we have no difficulty
concluding that that process fits the 2009 Forest Plan’s
description of a situation in which “specific ... allowable
use levels have been designed through ... site-specific
NEPA decisions,” and so were “designed specifically for”
the Dry Cottonwood Allotment.
Consideration of the purpose of Grazing Standard 1 in
the 2009 Forest Plan bolsters our conclusion. That purpose
is “to prevent reduction of existing water quality or physical
or biological functions of riparian-wetland areas from
management activities.” (Emphasis added.) As the Service
points out, applying the 2009 allowable use levels to the Dry
Cottonwood Allotment would in some respects be less
environmentally protective than applying the 1995
measures. Notably, one concern discussed in the
environmental assessment for the Dry Cottonwood
Allotment was the health of woody riparian species such as
willow and dogwood. Although the 1995 Riparian
Mitigation Measures limit livestock use of woody forage, the
2009 measures do not. Additionally, the 2009 measures do
not contain a percentage limitation on livestock use of
4 See Appendix.
18 2-BAR RANCH LTD. PARTNERSHIP V. USFS
riparian herbaceous forage, while the 1995 measures do.
Replacing more protective standards with less protective
standards would be contrary to the 2009 Forest Plan’s goal
of preserving “existing” water quality and physical and
biological functions.
B.
Unlike the district court, Plaintiffs do not focus on the
“designed specifically for” phrase in the 2009 Forest Plan.
Instead, they rely on a different part of the 2009 Forest Plan,
which states generally both that the standards in the 2009
plan apply “forestwide” and that “[i]f there are additional
objectives and standards for specific areas [they] will be
listed in the appropriate management area in Chapter 4.”
Plaintiffs then point to the section of chapter 4 dedicated to
the East Deerlodge Management Area, which contains the
Dry Cottonwood Allotment. That section identifies no
objectives or standards in addition to the forestwide
standards that apply to the East Deerlodge Management
Area. Plaintiffs conclude that the Service must not have
adopted site-specific allowable use levels for livestock
grazing on the Dry Cottonwood Allotment, as no such levels
are listed in the East Deerlodge Management Area section in
chapter 4.
We are unpersuaded. There is no conflict between
applying the 2009 Forest Plan’s Grazing Standard 1
“forestwide” and applying different allowable use levels to
particular allotments based on site-specific processes. The
caveat that different levels may apply to some allotments is
already built into Grazing Standard 1, which itself states that
the measures it contains apply to “livestock grazing
operations unless or until specific long-term objectives,
prescriptions, or allowable use levels have been designed
through individual resource management plans or site-
2-BAR RANCH LTD. PARTNERSHIP V. USFS 19
specific NEPA decisions.” (Emphasis added.) Applying
Grazing Standard 1 forestwide necessarily includes applying
the “unless or until” limitation, part of the standard,
forestwide.
Plaintiffs also contend that the purpose of the 2009
Forest Plan was to replace inconsistent management
direction with uniformity. Plaintiffs point to discussions in
the administrative record of “inconsistencies.” The text of
Grazing Standard 1 itself belies Plaintiffs’ assertion that the
Service’s overriding goal for grazing management was
uniformity, as that standard expressly allows for, and
preserves, site-specific allowable use levels that diverge
from the default levels.
Finally, Plaintiffs maintain that the Service expressly
rejected the 1995 Riparian Mitigation Measures when it
adopted the 2009 Forest Plan. They cite the Service’s
decision not to retain the standards from the “Deerlodge
Forest Plan Including INFISH-1995 Amendment.” But as
we have explained, the 1995 Riparian Mitigation Measures
were never incorporated into the 1987 Deerlodge Forest Plan
and were not part of the 1995 amendment to that plan. See
supra p. 7-8. Instead, the Service created the Mitigation
Measures as a standalone tool to help implement the
amended forest plan. Moreover, Plaintiffs’ insinuation that
any application of the 1995 Riparian Mitigation Measures
would inadequately protect riparian area function overlooks
the fact that the application of the 1995 measures to the Dry
Cottonwood Allotment is in some respects more
environmentally protective than the 2009 default levels. See
supra pp. 17-18.
Given the language and structure of the 2009 Forest Plan
and the reticulated nature of the 1995 Riparian Mitigation
Measures, the Service properly applied the Measures to the
20 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Dry Cottonwood Allotment. The Service’s incorporation of
the 1995 measures into Plaintiffs’ grazing permits was
therefore lawful. Because the 2009 Forest Plan is not
ambiguous in any pertinent respect, we need not reach the
Service’s alternative argument that we should defer to its
regulatory interpretation.
II.
The Forest Supervisor denied Plaintiffs’ request for
attorney’s fees under EAJA for their administrative appeal,
holding that their appeal was not an “adversary adjudication”
for purposes of the fee-shifting statute. EAJA provides that
[aJn agency that conducts an adversary
adjudication shall award, to a prevailing party
other than the United States, fees and other
expenses incurred by that party in connection
with that proceeding, unless the adjudicative
officer of the agency finds that the position of
the agency was substantially justified or that
special circumstances make an award unjust.
5 U.S.C. § 504(a)(1). The district court declined to review
the Forest Supervisor’s determination and instead remanded
for the agency to consider whether the Service’s position
was “substantially justified.” That approach was
inappropriate, as the “substantially justified” standard would
have no application were fees unavailable at all for the
administrative appeal, as the Forest Supervisor held. On
appeal, both sides ask us to decide whether the
administrative appeal was an “adversary adjudication”
rather than remanding the issue, noting that if it was not,
proceedings on Plaintiffs’ EAJA application will end. We
agree that addressing the question is the more efficient
course and do so.
2-BAR RANCH LTD. PARTNERSHIP V. USFS 21
oe
EAJA defines an “adversary adjudication” as “an
adjudication under section 554 of this title in which the
position of the United States is represented by counsel or
otherwise” 5 U.S.C. §504(b)(1)(C). Section 554
“delineates the scope of proceedings governed by the formal
adjudication requirements” of the APA, Ardestani v. INS,
502 U.S. 129, 132-33 (1991), and “applies .. . in every case
of adjudication required by statute to be determined on the
record after opportunity for an agency hearing,” with some
exceptions not relevant here. 5 U.S.C. § 554(a). Section 554
also prescribes some of the requirements for formal
adjudications under the APA; sections 556 and 557 prescribe
additional ones. /d. §§ 556, 557. Among other things, parties
are “entitled to present [their] case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full
and true disclosure of the facts.” /d. § 556(d).
The Supreme Court has made clear that “the meaning of
‘an adjudication under section 554’ is unambiguous in the
context of the EAJA” and refers only to “proceedings . . .
‘subject to’ or ‘governed by’ § 554.” Ardestani, 502 U.S.
at 135. In other words, an agency proceeding is an
“adversary adjudication” for EAJA purposes only if it is
actually governed by the APA’s formal adjudication
requirements, as opposed to, for example, the similar
requirements of another statute or regulation. Thus, EAJA
did not apply to the deportation proceedings at issue in
Ardestani, which were governed by the Immigration and
Nationality Act (“INA”). /d. at 133-35. The question we
must answer, then, is whether the Service’s administrative
appeal process is governed by section 554.
Section 554 “generally applies where an administrative
hearing is required by statute or the Constitution.” Aageson
22 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Grain & Cattle v. U.S. Dep’t of Agric., 500 F.3d 1038, 1044
(9th Cir. 2007). Plaintiffs acknowledge that the “statutes
governing grazing on Forest Service allotments do not
expressly require adjudications to be decided on the record
after opportunity for agency hearing.” The administrative
appeal process in this case was prescribed not by statute but
by Service regulations, specifically, 36 C.F.R. part 214.
Plaintiffs contend, however, that they had a
constitutional right to be heard before their permits were
suspended and that section 554 therefore applied to their
administrative appeal. They rely for this argument on cases
holding that when regulated parties have a due process right
to an administrative hearing, the agency must observe the
APA’s formal adjudication procedures. Wong Yang Sung v.
McGrath, 339 U.S. 33, 51 (1950), for example, held, before
the INA provided for deportation hearings before an
independent adjudicator, that due process requires an
administrative hearing before an immigrant can be deported,
and that the APA’s formal adjudication procedures were
therefore applicable. And Collord v. U.S. Dep’t of Interior,
154 F.3d 933, 936 (9th Cir. 1998), followed Adams vy.
Witmer, 271 F.2d 29, 32-33 (9th Cir. 1958), which held that
the APA applied to the adjudication of rights under the
General Mining Law of 1872.
Wong Yang Sung and Adams predate Mathews v.
Eldridge, 424 U.S. 319 (1976), whose balancing test “has
‘become the standard for determining whether certain
challenged administrative procedures comply with the
requirements of due process.’” Collord, 154 F.3d at 937
(quoting Girard v. Klopfenstein, 930 F.2d 738, 742 (9th Cir.
1991)). Collord, following Adams’s holding that section 554
applies to mining claim contest proceedings, concluded that
those proceedings are “governed by” section 554 for EAJA
2-BAR RANCH LTD. PARTNERSHIP V. USFS 23
purposes. /d. at 936. But Collord did not address whether
due process required the Department of the Interior to apply
section 554 to mining claim proceedings, because the parties
in Collord agreed that those proceedings were in fact
“conducted in accordance with the terms of § 554,” and there
was “no issue as to the constitutional adequacy of those
proceedings.” /d. at 937.
Wong Yang Sung, Adams, and Collord do not apply here
because the administrative review processes applicable here
do not mimic those set out in the APA and, as we have
already held, due process does not require that they do so.
Buckingham v. Sec’y of U.S. Dep't of Agric., 603 F.3d 1073,
1084 (9th Cir. 2010). Buckingham, applying Mathews,
examined the same administrative appeal process at issue
here. Under the Service’s regulations, that process allows
parties to present written arguments and make oral
presentations. See 36 C.F.R. §§ 214.8, 214.16; Buckingham,
603 F.3d at 1084. Unlike administrative hearings governed
by section 554, “[o]ral presentations are not evidentiary
proceedings involving examination and cross-examination
of witnesses and are not subject to formal rules of
procedure.” 36 C.F.R. § 214.16(b). Buckingham rejected the
plaintiff's argument that “an evidentiary hearing and cross-
examination were necessary.” 603 F.3d at 1083. The
Service’s process adequately gave the plaintiff “the
opportunity to present... his case,” Buckingham held, and
“the adjudicator was able to consider, and did consider, the
evidence presented by both” the plaintiff and the Service,
“resulting in the adjudicator making an informed decision.”
Id. at 1084. Because the plaintiff had an “opportunity to be
heard at a meaningful time and in a meaningful manner,” the
requirements of due process were satisfied. /d.; see
Mathews, 424 U.S. at 333.
24 2-BAR RANCH LTD. PARTNERSHIP V. USFS
Here, Plaintiffs do not contend—nor could they, in light
of Buckingham—that the Service’s administrative appeal
procedures deprived them of due process. They assert,
instead, that they had some due process right to be heard, and
that the Service’s appeal process is therefore governed by
section 554—even though the specific procedures
referenced in that section directly and by cross-reference are
inapplicable. But again, unlike the proceedings in Collord,
Plaintiffs’ administrative appeal was not in fact conducted in
accordance with the terms of 5 U.S.C. §554. And, as
Buckingham held, there was no statutory or constitutional
requirement that it be so conducted. In these circumstances,
we cannot say the administrative appeal was “‘governed by’
§ 554.” Ardestani, 502 U.S. at 135.
The administrative appeal was therefore not an
“adversary adjudication” for purposes of EAJA. /d. at 139.
The Service properly denied Plaintiffs’ request for attorney’ s
fees for their administrative appeal.
CONCLUSION
The Service lawfully applied the 1995 Riparian
Mitigation Measures to Plaintiffs’ grazing permits and
properly denied Plaintiffs’ request for attorney’s fees for
their administrative appeal. We therefore reverse the district
court’s grant of partial summary judgment to Plaintiffs and
remand with instructions to grant summary judgment to the
Service.
REVERSED AND REMANDED.
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APPENDIX
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APPENDIX A
INTERIM
RIPARIAN MITIGATION MEASURES
DEERLODGE NATIONAL FOREST
September 14, 1995
INTRODUCTION: Not too long ago brushy riparian vegetation was viewed mainly as
an obstruction, Willows have been burnt and pulled throughout southwest
Montana to provide more room for more palatable forage. With more knowledge,
however, our concepts have changed. Today it is recognized that riparian zones
support a host of ecological and social functions.
Major emphasis is now being placed on riparian conditions in relation to
livestock grazing on federally administered lands. The Beaverhead National
Forest has done pioneering work in drafting and implementing riparian
guidelines. The Helena National Forest's "Riparian Guidelines for Grazing"
provides a fine explanation of the principles and terminology of riparian
condition. The Deerlodge Forest mitigation measures borrow freely from work
done on our neighboring forests. The Deerlodge mitigation measures adopt the
inherent stability of vegetative communities and the measurement parameters of
the Beaverhead, the resiliency/resistance matrix of the Helena, and the
thoughtful explanations of each.
GOAL: These mitigation measures were developed as an interim step to assist
the Forest in maintaining or moving toward riparian desired conditions.
Generally the desired conditions are to restore and maintain the historical
extent and function of riparian areas where possible, considering their
inherent characteristics (physical and biological) and their existing
conditions and functionality. Additional desired conditions may be developed
for specific landscape analysis areas and watersheds on the Forest, These
measures are intended to meet the Riparian Management Objectives listed in the
Inland Native Fish Strategy.
BASICS: The riparian mitigation measures use four measurable parameters to
determine the appropriate level of livestock grazing in riparian areas. The
four parameters are:
streambank disturbance - physical alteration of the bank by any means
stubble height - the height of standing herbaceous vegetation at the
water's edge
woody browse use - the percent use of current year's leaders, below 6 1/2
feet, of willow, aspen, dogwood, and other species used by livestock and
wildlife
riparian herbaceous utilization - the percent of total weight of key
riparian species utilized by livestock in the floodplain or on the adjacent
terrace
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E.R. 382 aie
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Allowable disturbance and utilization levels are tailored to each stream reach
depending on the inherent stability of its vegetative community and the reach's
resiliency/resistance.
RIPARIAN COMMUNITY STABILITY: In an effort toward simplification, three
riparian community stability classes were developed using the values presented
in the Beaverhead riparian guidelines. First the community types were grouped
according to dominant life form, i.e, trees vs. shrubs, A second grouping
combined life forms into similar classes based on inherent stability.
The three community stability classes are:
Conifers, shrubs, and sedges have the highest inherent stability, These
communities include riparian conifer types; shrub types that include all
willows, dogwood, birch, alder; sedge types (excluding Nebraska sedge); and
spike rush, bulrush, and cattails. Average streambank stability for these
communities is 88. That is, under natural conditions, an average of 88
percent of the stream channel would be stable.
Deciduous trees and native grasses are the moderate inherent stability
group. Deciduous trees include cottonwood and aspen trees; native grasses
or grass-like plants include such species as tufted hairgrass, bluejoint
reedgrass, Nebraska sedge, Baltic rush, and northern mannagrass. Average
inherent stability values for these communities is 62 percent,
Introduced grasses, sagebrush, shrubby cinquefoil, and other herbaceous are
the lowest inherent stability. Grasses include introduced moist site
species such as bluegrasses and timothy; dryland grasses such as Idaho
fescue and cheatgrass. Herbaceous plant species include horsetails and
introduced species such as dandelion, European clovers, spotted knapweed,
Canada thistle, and musk thistle. Sagebrush species most commonly
encountered is big sagebrush, Artemisia tridentata. Average inherent
stability values for these communities is 40 percent.
RESILIENCY/RESISTANCE: Landtype association resiliency/resistance refers to
the interrelated abilities of a riparian area to recover once disturbed and
remain unchanged while withstanding disturbance. This capacity is a factor of
parent material, landforms, soils, existing vegetation, and stream
characteristics. The range for this feature is extensive on the Deerlodge
National Forest due to the variety of parent materials, landforms, and
disturbance histories. Even so, useful groups are created with only three
divisions:
Systems with high resiliency/resistance are those typically having steep or
very steep valley bottom gradients with small to large boulder size
streambed materials dominant and considerable exposed bedrock, Geology can
vary. Streams are typically ephemeral at the highest elevations and
intermittent or perennial at lower elevations, The relative width of
riparian vegetation is narrow; soils are mostly shallow.
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On the opposite end of the spectrum are low resiliency/resistance systems
primarily in granitics or coarse-grained volcanics at mid-to-low
elevations. Valley bottom gradients range from steep to gentle with high
percentages of coarse sand and finer material. Streams are typically
perennial and mostly of third or higher order. The width of riparian
vegetation at lower gradients is moderate or wider, and soils are usually
deep.
The largest group of this classification are the remaining possibilities
found on the Forest. The moderate resiliency/resistance systems are
typically found in limestones, metasedimentary, fine-grained volcanics, and
mixed geologies. Elevation ranges are upper-to-lower, usually below
glaciation. Valley bottom gradients are typically steep to gentle with
streambeds of mixed sizes. Stream order is variable. The relative width
of riparian vegetation varies with some wide valley floodplains, and soils
are shallow to deep.
Table 1. Deerlodge National Forest Interim Riparian Mitigation Measures
Vegetative RESILIENCY /RESISTANCE
Community Parameter Low Medium High
Conifers Stream Disturbance 20% 25% 35%
Shrubs Stubble Height * 6-8-8 in 5-6-7 in 5-6-7 in
Sedges Woody Utilization 20% 25% 25%
Forage Utilization 35% 40% 40%
Deciduous Stream Disturbance 30% 45% 45%
Trees & Stubble Height * 6-8-8 in 6-6-7 in 5-6-7 in
Native Woody Utilization 20% 20% 25%
Grasses Forage Utilization 35% 40% 40%
Introduced Stream Disturbance 50% 65% 65%
Grasses, Stubble Height * 3-3-4 in 2-2-3 in 2-2-3 in
ARTTRI, Woody Utilization 20% 20% 25%
POTFRU & Forage Utilization 50% 50% 50%
other herb
* Allowable stubble height at water's edge varies with season of grazing.
Early season use (roughly June through mid-July) allows stubble heights to be
reduced since regrowth is expected. Mid-season is considered to be mid-July
through mid-August) and late season late season use is late August to the end
of October.
Exceeding any one of the parameters is sufficient to require cattle to move
from the area.
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