Oregon Natural Desert Ass'n v. Sabo (854 F. Supp. 2d 889, 2012)

ORDER

PANNER, District Judge:

Magistrate Judge Mark D. Clarke filed a Report and Recommendation (# 37) and an Amended Report and Recommendation Regarding Remedial Relief (# 70), and the matter is now before me. See 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b). Defendants filed objections and I have reviewed the file of this case de novo. 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). I find no error and adopt the reports (# 37 & # 70).

IT IS SO ORDERED.

ORDER AND AMENDED REPORT AND RECOMMENDATION REGARDING REMEDIAL RELIEF

CLARKE, United States Magistrate Judge.

On July 12, 2011, this Court entered an Order and Report and Recommendation recommending that plaintiffs’ motions for summary judgment as to their NFMA claims regarding the Allotment be granted and that their NEPA claims as to the Allotment and as to Round Meadow be granted (# 37). Plaintiffs have filed a motion to amend Order and Report and Recommendation to add remedial relief (# 43). Iverson Management Limited Partnership (Iverson LP) then sought to intervene in the case, which the Court allowed (# 50). Plaintiffs have also filed a notice of supplemental evidence (# 61), which defendants and defendant-intervenor object to and defendant-intervenor move to strike (# 63). The Court heard oral argument on these issues on August 25, 2011. For the reasons that follow, plaintiffs’ motion to add remedial relief should be denied; the Court amends its July 12 Order and Report and Recommendation to explain its ruling.

DISCUSSION

Defendants’ Request to Correct July 12, 2011, Order and Report and Recommendation

As an initial matter, the Court addresses defendants’ requests in their response to correct the Court’s Order and Report and Recommendation (R & R).

The Court’s July 12, 2011, R & R is corrected as follows:

on page 34, in the third line of the first paragraph, “1990” and “twenty” should be deleted and “1995” and “fifteen” should be substituted; the full sentence should read; “The current AMP was completed in 1995, over fifteen years ago.”

The Court declines to correct the R & R as it relates to the finding that the 2008 AOI was arbitrary and capricious. Making the change requested by defendants does not change the Court’s legal analysis.

Defendants’ and Defendant-Intervenor’s Objections to Plaintiffs’ Supplemental Evidence and Defendant-Intervenor’s Motion to Strike

After defendants and defendant-intervenor filed their responses to plaintiffs’ motion, plaintiffs filed certain supplemental evidence in the form of some August 2011 emails and letters addressed to defendant Sabo and Barbara Machado by Jayne Goodwin and some photographs allegedly taken by Ms. Goodwin. The Court sustains defendants’ and defendant-intervenor’s objections to this evidence and plaintiffs’ supplemental evidence will not be considered by the Court. Defendant-intervenor’s motion to strike is granted.

Plaintiffs’ Motion to Amend R & R to Add Remedial Relief

Relevant Procedural History and Relief Sought

In March 2011, the permitee, Iverson LP, requested to be allowed to graze ex-closures presently in the Allotment, including the Round Meadow exclosure. District Ranger Sabo decided to consider effects analysis and draft BEs for sensitive plant, animal, and aquatic species from Forest Service specialists in wildlife, botany, soils, range, and watershed/fisheries before making his decision on the request. (# 59 Sabo Decl.)

The 2011 AOI was issued on May 6, 2011, without a decision made as to the permitee’s request to graze any of the exclosures. The AOI authorizes grazing for the Allotment on the Silver Lake and Chemult Ranger Districts. The AOI authorized 275 cow-calf pairs and 104 cow/ calf pairs private on the Chemult Pasture, a total of 379 eow/calf pairs, beginning August 1, and moved from the pasture beginning September 15, with 90% off Forest by September 30. The AOI states:

The Jack Creek Riparian Pasture on the Chemult Pasture is still in a “no grazing” status until completion of a new Allotment Management Plan. It is your responsibility to maintain the Jack Creek Riparian fence in a manner that keeps cattle from accessing the riparian pasture and to monitor the area regularly to minimize/eliminate livestock impacts in this area. Cattle observed in the Jack Creek Riparian Pasture will be reported to you in a timely manner and it is my expectation that you will respond quickly to these reports. Any livestock in the Jack Creek Riparian Pasture will be moved out as soon as possible but no longer than 3 days of you receiving the report. If livestock accessing the Jack Creek Riparian Pasture becomes a chronic problem over the summer or you do not respond in a timely manner, I will consider permit action to rectify the situation.

In the “Herding” section, it is stated that, “Keep cattle moving and away from riparian zones as often as possible.” The “Maintenance Responsibilities” section states: “Maintenance of structures needed to control livestock is an issue within the Antelope/Chemult allotment. We are assessing the condition of all structures on the allotment in preparation for a new Allotment Management Plan. Please keep notes of structures that no longer function or cannot be maintained for inclusion in the new AMP.” (Defs. Response Ex. A.)

After receiving the analysis and draft BEs in early May 2011, and discussion with the specialists, District Ranger Sabo decided not to authorize grazing on the existing exclosures, but he would consider grazing within the Round Meadow exclosure. (# 59 Sabo Decl.)

At the May 24, 2011, oral argument on the parties’ cross-motions for summary judgment, defendants made known that the 2011 AOI had been issued in May, authorizing grazing to begin on August 1.

The Court issued its R & R on July 12, 2011.

As a result of the Court’s R & R and discussion with the permitee’s representative, Keith Little, District Ranger Sabo decided not to proceed with further consideration of grazing in Round Meadow in the 2011 season. (# 59 Sabo Decl.)

The Forest Service completed three BEs for sensitive plant, animal, and aquatic species prior to the August 1 grazing season: an Aquatic Species BE dated July 29, 2011; a Terrestrial Wildlife BE dated July 29, 2011; and a Botanical Species and Terrestrial Mollusks BE and Special Report dated July 30, 2011. (# 59 Sabo Decl. Ex. B; Markus Decl. Ex. A; Malaby Decl. Ex. A.)

In their motion to add remedial relief filed on July 28, 2011, plaintiffs seek to add the following relief relating to the Allotment:

• prohibition of grazing in Round Meadow and all exclosures until completion of NEPA analysis

• exclusion of cattle from sensitive species habitat until completion of biological evaluations for sensitive species and NEPA analysis; sensitive species habitat needing protection to be identified by the Chemult District wildlife biologist and zone botanist, minimally to include all known sensitive species sites, and requiring

• installation of temporary electric fencing around ten habitat sites identified in the motion

• permitee to have riders with the cattle at all times, actively' herding cattle away from identified sensitive species habitat, including all exclosures and temporary fenced areas

• weekly monitoring during grazing season for presence of cattle in identified sensitive species habitat, with removal of cattle if repeated trespass occurs; biweekly reports to plaintiffs and mid-season report to the Court

• completion of biological evaluations for all sensitive species and NEPA analysis by March 30, 2013; completion of Oregon spotted frog site management plan by December 31, 2011, and all scoped frog habitat restoration projects by November 30, 2012; completion of a site management plan for plant and mollusk sensitive species and restoration of fen habitat by August 31, 2012

(Pis. Brief at 13-15 & Pis. “[Proposed] Amended Order and Report and Recommendation.”)

Plaintiffs did not move to amend their complaint to challenge the 2011 AOL Plaintiffs did not move for any type of injunctive relief at any stage of the proceeding until they filed the instant motion. In their complaint, plaintiffs did not include any claim for delay in completing the revised AMP. (See R & R at 41.)

Analysis

Plaintiffs move to amend the Court’s R & R to add remedial relief, contending that the relief is necessary to remedy the multiple legal violations of NFMA and NEPA which the Court found in its July 12 decision, and to remedy past harms and prevent future irreparable harms to unique fen communities and sensitive plant and animal species found on the Allotment. In moving to amend, plaintiffs rely upon Federal Rules of Civil Procedure 60(b), 72(b), and 65, and the Court’s R & R.

The rules cited by plaintiff are not really on point. As pointed out by defendants, Rule 60(b) relates to grounds for relief from a final judgment, order, or proceeding, and Rule 65 relates to issuing preliminary injunctions and temporary restraining orders. Rule 72(b) relates to magistrate judges and dispositive motions. However, the court has broad authority to fashion an equitable remedy. United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 175 (9th Cir.1987) (“The essence of equity jurisdiction is the power of the court to fashion a remedy depending upon the necessities of the particular case.”)

Injunctive Relief

Before a court may issue permanent injunctive relief, a plaintiff must meet the well-established four-factor test:

(1) that it has suffered an irreparable injury: (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1184 (9th Cir.2011) (per curiam) (Sherman) (quoting eBay Inc. v. MercEx change, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)); Monsanto Co. v. Geertson Seed Farms, — U.S. -, 130 S.Ct. 2743, 2756-57, 177 L.Ed.2d 461 (2010) (applying four-factor test in NEPA violation case). “An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief,” Id. at 22, 24, 129 S.Ct. 365, No “thumb on the scales is warranted” in an environmental case. See Monsanto, — U.S.-, 130 S.Ct. at 2757 (NEPA case). As the cited cases make clear, it is plaintiffs burden to prove that the requested injunctive relief is warranted. See Natural Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886 (9th Cir.2007). Any injunctive relief ordered must be tailored to remedy the specific harm alleged. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir.2009).

The Supreme Court has stated that, “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.2011). There appears to be no dispute that the element of inadequate remedies at law is met in this case. See Amoco Prod., 480 U.S. at 545, 107 S.Ct. 1396. However, while environmental harm is often irreparable, the court may not presume irreparable harm upon a showing of likelihood of success on the merits or a finding of a NEPA or NFMA violation. See Flexible Lifeline Sys. v. Precision Lift, Inc., 654 F.3d 989, 994-1000 (9th Cir.2011) (and cases cited).

In support of this element, plaintiffs point to statements in the factual background of the Court’s July 12 R & R and to portions of the administrative record. The Court found in the R & R that plaintiffs had shown harm to plant and animal sensitive species and their habitat on the Allotment. The most the Court found in its R & R was that, in relation to plaintiffs’ NEPA claim as to the Allotment, “allowing grazing each season in the same numbers for virtually the same season is causing harm to sensitive plant and animal species and their habitat, which could be irreversible.” (R & R at 42.) As the July 12 R & R shows, there is no question that injury has occurred to fens, mollusks, Oregon spotted frogs, and habitat due to cattle grazing. But these findings of harm do not equate to a finding of existing irreparable harm, or that irreparable injury will likely occur if grazing is allowed under the conditions of the 2011 AOL.

Other than bold assertions, plaintiffs have not offered any expert declarations in support of a showing of irreparable harm to any of the plant or animal sensitive species or their habitats. As stated previously, irreparable harm is no longer presumed when an environmental violation is found. Plaintiffs refer in their motion to the Goodwin declaration filed with the motion for summary judgment, but defendants offer evidence that that declaration was offered for the purpose of establishing standing only and not as an expert opinion going to the merits of the case. (Defs. Resp. Ex. B.)

At oral argument, plaintiffs argued that defendants’ evidence that some fen locations were in poor condition showed irreparable injury. (See Malaby Decl. Ex. A.) However, there was no showing that the poor fen condition was due to cattle grazing rather than due to naturally occurring bare soil or that any soil disturbance was due to damage by other ungulate wildlife.

Here, defendant Forest Service completed draft sensitive plant, animal, and aquatic species BEs prior to issuance of the 2011 AOI in May, and completed the BEs by the end of July prior to the August 1 beginning of grazing season. (# 59 Sabo Decl. & Ex. B July 29, 2011, Aquatic Species BE; Markus Decl. & Ex. A July 29, 2011, Terrestrial Wildlife BE; Malaby Decl. & Ex, A July 30, 2011, Botanical Species and Terrestrial Mollusks BE and Special Report.) The Forest Wildlife Biologist, Ms. Markus, evaluated all terrestrial wildlife on the sensitive species list for the region including the Oregon spotted frog, with the exception of terrestrial mollusks. Her impact determination (direct, indirect, and cumulative impacts) of the effects of grazing in 2011 on the Allotment, as to the Oregon spotted frog, was “ ‘may impact individuals or habitat, but would not likely contribute to a trend towards federal listing, or cause loss of viability to the population or species.’ ” (Markus Decl. ¶ 2 & Ex. A at 47.) Her impact determination as to other region sensitive species was the same or a determination of “ ‘no impact.’ ” Ms. Malaby, the Forest Botanist, addressed all botanical species and terrestrial mollusks in her BE. As to species with known habitat in the Chemult Pasture, her impact determination was “ ‘may impact individuals or habitat, but would not likely contribute to a trend towards federal listing, or cause loss of viability to the population or species.’ ” Her impact determination as to other region sensitive species was the same or a determination of “ ‘no impact.’ ” (Malaby Decl. ¶¶ 3-4 & Ex. A.)

Plaintiffs appear to argue that the Court should not defer to government experts when violations have been found, citing Sherman. The Ninth Circuit in that case determined that the district court abused its discretion when it deferred to agency views “concerning the equitable prerequisites for an injunction.” 646 F.3d at 1185— 86. The Sherman court stated that, “[e]cology is not a field within the unique expertise of the federal government.” Id.

Here, the Court does not consider any reliance on the declarations offered by the Forest Service as deferring to these declarations simply because they are offered by the government. Plaintiffs have not offered any contrary declarations in support of their motion nor do they point to other evidence which supports a finding of irreparable injury.

Plaintiffs assert in their brief that, “This year it is particularly important to protect the fens because of the late snowpack, which prolongs the standing water and high soil moisture in the fens, making them more susceptible to damage from cattle hooves.” (Pis. Brief at 10.) Plaintiffs offer no evidence in support of their argument that the late snowpack makes the fens more susceptible to damage. Defendants argue, in contrast, that a wet year with abundant sedge and grass growth should retain the good condition of fens and sensitive plant habitat, offering the Malaby Declaration in support.

As part of the remedial relief sought, plaintiffs propose, in part, to install temporary fencing around ten habitat sites on the Allotment. They also seek to require that the permitee have riders with cattle “at all times” cattle are on the Allotment. (#43-8 Pis. “[Proposed] Amended Order and Report and Recommendation.”)

The relief sought by plaintiffs is not practical, would take a long time to accomplish, and would be very expensive. It would also have serious impact on the intervenor’s business.

District Ranger Sabo states in his August 15 declaration that the ten sites identified by plaintiff range in size from approximately five acres to fifty-nine acres, which would require “several miles” of fencing to enclose the areas, in ten different configurations and ten electric charge options. He states that to secure funding for personnel and materials, as well as clearing forested- areas for the fencing is a “staggering” proposal, and it is unlikely that the work could be completed this grazing season. Southwest Zone Range-land Manager for the Forest, Joseph E. Robson, declares that most of the ten areas require fencing through lodgepole pine forest including standing and down timber, which would require clearing an adequate right of way to ensure effective fencing. Mr. Robson further states that the forest has four chargers of adequate capacity and two solar panels and other materials, but additional materials would have to be purchased. (# 60 Robson Decl.) District Ranger Sabo further states in his declaration that fencing the ten locations is not feasible because of NEPA requirements for installation of electric fences which could not be completed this grazing season. (# 59 Sabo Decl.) Keith Little, ranch manager for intervenor Iverson LP states in his August 4 declaration that fencing the ten areas proposed would be practically and economically infeasible. He states that if the partnership were required to pay for the fencing, grazing on the Chem-ult Pasture would become unprofitable and it would likely choose to fence its private lands and graze all its cows on private pasture land. (# 48 Little Decl.)

The Court notes that, in support of the requested relief, plaintiffs state that the relief would alleviate harm by restoring and protecting important and unique fen habitat as well as spotted frog habitat but still allow grazing of the “uplands” in the Allotment. (Pis. Brief at 10, 18.) No declaration is offered in support of this assertion. However, it is noteworthy that the Botanical Species and Terrestrial Mollusks BE states in the section discussing direct, indirect, and cumulative effects to sensitive plants with potential habitat in the Chem-ult Pasture that, “Grazing is likely to have minimal effects to upland species in the Chemult pasture, because upland habitats lack forage to attract livestock.” (Malaby Decl. Ex. A at 15.)

The 2011 AOI requires that Iverson LP provide a herder throughout the grazing season to maintain proper distribution of cattle and to keep cattle moving and away from riparian zones as often as possible. (Defs. Resp. Ex. A.) Mr. Little states in his declaration that he normally checks the fences and rides the Allotment four to five days per week during the season to ensure that cattle are well distributed and “not impacting sensitive rangeland, riparian and wetland resources.” He states that, as an added level of protection, he plans to increase his riding to five to six days per week for the remainder of this season. Mr. Little estimates that, to meet the riding requirement proposed by plaintiffs, he would have to hire five full-time riders to monitor the ten areas proposed to be fenced, which is a significant financial strain and practically impossible to accomplish on short notice. (# 48 Little Decl.)

District Ranger Sabo decided not to allow grazing in any of the existing exclosures, including Round Meadow this season. Mr. Little, intervenor Iverson LP’s manager, declares that he intends to increase his riding of the Allotment to check fences and ensure that cattle are well distributed and not affecting sensitive Allotment resources. Even with these measures, if plaintiffs are not granted the relief they request, there will undoubtedly be impacts to sensitive species and habitat from cattle grazing this season. However, based upon the record and the opinions of the Forest wildlife biologist and Forest botanist, these impacts will be isolated. Balancing the hardships on each side favors defendants and the intervenor.

Finally, the public interest is not all that clear. It is true, as plaintiffs assert, that, “[t]he preservation of our environment, as required by NEPA and NFMA, is clearly in the public interest.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1177 (9th Cir.2006), abrogated on other grounds by Winter, 555 U.S. 7, 129 S.Ct. 365. However, if the Court grants the relief requested by plaintiffs, in particular the fencing of the ten identified habitat sites, the permitee-intervenor may well move all the cattle to private land where valuable frog habitat is located. The intervenor’s manager, Mr. Little, states in his declaration that the partnership’s private lands include “prime” and “key” Oregon spotted frog habitat. (See Markus Deck Ex. A at 28.) Mr. Little states that, in the last three years, Iverson LP has worked with U.S. Fish and Wildlife Service to improve the habitat on its private lands for the benefit of the spotted frogs, but if the partnership is forced to graze its private lands more intensively, he believes that “it is inevitable that this circumstance would put the quality of the spotted frog habitat located on our lands at some risk,” (# 48 Little Deck)

The Court recognizes the public interest in preserving the unique environmental resources on the Allotment. However, based on this record, granting the relief requested would very likely result in serious damage to prime habitat for the Oregon spotted frog on the permitee intervenor’s private lands and would have serious impact on the intervenor’s business.

Conclusion

Plaintiffs make no showing to demonstrate that the relief requested is warranted in the circumstances and the relief they seek is too impractical. The record shows that defendants responded appropriately by completing sensitive species BEs prior to issuing operating instructions for the Allotment for the grazing season and by cutting the grazing season by one month.

The Court remains concerned about the unique environmental resources on the Allotment. The Court expects the defendants to complete the NEPA and AMP processes on the Allotment in a timely manner, and with serious consideration of the views of plaintiffs and other concerned groups and citizens.

In conclusion, the Court finds that plaintiffs have not sustained their burden of establishing the elements of the four-factor test to show that they are entitled to the injunctive relief sought. Accordingly, plaintiffs’ motion to add remedial relief to the Court’s R & R should be denied.

ORDER

The Court’s Order and Report and Recommendation filed July 12, 2011(# 37) is corrected as stated herein.

Defendants’ and defendant-intervenor’s objections to plaintiffs supplemental evidence are sustained and defendant-intervenor’s motion to strike is granted.

RECOMMENDATION

Based on the foregoing, it is recommended that plaintiffs’ motion to amend Order and Report and Recommendation to add remedial relief (# 43) be denied as to the remedial relief plaintiffs seek.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment or appealable order.

The Report and Recommendation will be referred to a district judge. Objections to this Report and Recommendation, if any, and to the Court’s July 12, 2011, Report and Recommendation, if any, are due by October 14, 2011. If objections are filed, any response to the objections are due by October 31, 2011, see Federal Rules of Civil Procedure 72 and 6.

Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation.

DATED this 26th day of September, 2011.

ORDER AND REPORT AND RECOMMENDATION

In this action, plaintiffs Oregon Natural Desert Association and Klamath Siskiyou Wildlands Center challenge annual operating instructions issued by defendants District Ranger Sabo and the Forest Service to graze livestock on the Chemult portion of the Antelope Allotment (Allotment) of the Fremont-Winema National Forest in the years 2008 through 2010, including the authorization in 2010 to graze Round Meadow within the Allotment. Plaintiffs allege that these grazing authorizations have caused harm to numerous sensitive plant and animal species and their habitat on the Antelope grazing Allotment (Allotment) in violation of the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA), Plaintiffs seek declaratory and injunctive relief. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Before the court’ are cross-motions for summary judgment brought by plaintiffs (# 18) and defendants (#27). For the reasons explained, plaintiffs’ motion for summary judgment should be granted in part and denied in part, and defendants’ motion for summary judgment should be granted in part and denied in part,

BACKGROUND

The Forest Service manages the National Forest System under NFMA, 16 U.S.C. §§ 1600 et seq., by first “developing a Land and Resource Management Plan (Forest Plan) for each unit of the National Forest System. The Service then implements the Forest Plan by approving or disapproving site-specific actions. The NFMA and service regulations require that proposed actions be consistent with the Forest Plan. 16 U.S.C. § 1604©.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1092 (9th Cir.2003); Buckingham v. Sec’y of USDA, 603 F.3d 1073, 1077 (9th Cir.2010); 36 C.F.R. § 219.10. Under the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1751-1753, the Forest Service is authorized to allow livestock grazing on a “designated area of land available for livestock grazing,” called an allotment, within a national forest. 36 C.F.R. Ch. II, Part 222; 36 C.F.R. § 222.1(b)(1). The Forest Service manages livestock grazing on an allotment by issuing a grazing permit; an allotment management plan (AMP); and an annual operating plan (AOP) or instruction (AOI). Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 979 (9th Cir.2006) (ONDA); Buckingham, 603 F.3d at 1077. Each of these are site-specific actions which must be consistent with the Forest Plan. Buckingham, 603 F.3d at 1077; Native Ecosystems Council v. Tidwell, 599 F.3d 926, 934 (9th Cir.2010). A grazing permit grants a license and establishes the number, kind, and class of livestock; the allotment to be grazed, and the period of authorized use. ONDA, 465 F.3d at 980 (citing 36 C.F.R. §§ 222.1-222.4; 43 U.S.C. § 1752). A grazing permit is ordinarily issued for a term of ten years, and may be canceled, modified, or suspended under certain conditions. 36 C.F.R. § 222.4; 43 U.S.C. § 1752. An AMP is

an allotment-specific planning document that: (1) prescribes the manner in, and extent to which, grazing operations will be conducted in order to meet multiple-use and other goals and objectives; (2) describes any range improvements in place or to be installed and maintained to meet allotment objectives; and (3) contains any other grazing management provisions and objectives prescribed by the Forest Service.

Or. Natural Desert Ass’n v. U.S. Forest Serv., 312 F.Supp.2d 1337, 1340 (D.Or.2004) (citing 36 C.F.R. § 222.1(b)(2)). As shown in the record, an AOP or AOI is issued annually prior to the grazing season and sets out instructions to the permittee for that season’s grazing operations. “Because an AOI is issued annually, it is responsive to conditions that the Forest Service could not or may not have anticipated and planned for in the AMP or grazing permit, such as drought conditions, timing and duration of rainfall over the grazing season, success or failure of habitat restoration projects, water quality, or degree of risk to threatened or endangered species affected by grazing.” ONDA, 465 F.3d at 980-81. The AOP or AOI is an agreement signed by the Forest Service and the permittee and, as shown in the record, provides that it is made part of the permit-tee’s grazing permit.

The Land and Resource Management Plan-Winema National Forest dated 1990 (Forest Plan) is the governing Forest Plan for the Allotment. (Sept. 2008 AR 12-204.)

In 1993, U.S. Fish & Wildlife Service determined that listing the Oregon spotted frog as threatened was warranted because it was “known to be severely declining,” making the frog a “candidate species,” but listing was precluded by work on other species with a higher priority. 58 Fed. Reg. 27260 at 27262 (May 7, 1993). (See AR 4442.)

An environmental assessment and accompanying biological evaluation were completed in May 1995 for the purpose of analyzing the effects of continued grazing on the Allotment in the context of renewal of the 1996 grazing permit. (Sept. 2008 AR 399-422, 437-439, 557.)

A population of the Oregon spotted frog was discovered in Jack Creek in the spring of 1996. (Sept. 2008 AR 738, 1960.) It is one of five populations in the Klamath Basin. Oregon spotted frogs sampled from the Klamath Basin populations appear to compose a genetic unit more divergent from other sampled populations. The population of Oregon spotted frog living in the perennial reach of the Jack Creek drainage has been described by Forest Service personnel as “unique” because it is located at the highest elevation recorded for the frog in the Klamath Basin; its isolated population; it lacks exotic aquatic predators; and it is within an active grazing allotment. (Sept. 2008 AR 2337, 2352, 2861.) The Jack Creek Oregon spotted frog population has steadily declined. (Sept. 2008 AR 1959, 2337, 2353, 2540, 2899, 3824, 3825; AR 2511, 2512, 2944, 4442.) The highest breeding populations of the Oregon spotted frog have been found within the heavily grazed private land portions of Jack Creek. (AR 2706, 3933; see AR 2270.)

In 1998, Round Meadow, an approximately 300-acre meadow, was acquired by the Winema National Forest through a land exchange. The Final Environmental Impact Statement (FEIS) was prepared for the exchange. (AR 762, 729-1151, 1837.)

Records indicate that Round Meadow was grazed in 2002. (Sept. 2008 AR 1461, 1675-1676.)

A decision memo for the Round Meadow rehabilitation project was signed in September 2003. The goals for the project were to restore wetland wildlife habitat, restore the natural water storage and release characteristics of the meadow, increase the abundance and extent of wetland vegetation, and reduce encroachment of lodgepole pines. Because Round Meadow is within the boundary of the Allotment, “A perimeter fence will control grazing in the meadow during recovery.” The memo also stated: “The [FEIS] for the land exchange documented that the Antelope [AMP] would be updated prior to any change in grazing capacity resulting from the land acquisition. The AMP update would address grazing practices (capacity, timing, and duration) in Round Meadow.” (Sept. 2008 AR 1837-1841.) A biological evaluation for sensitive animal species for the project was prepared. It stated in part that:

Round meadow is a seasonally flooded inland wetland that was ditched and drained in the 1970’s. The land was previously in private ownership, and was acquired through a land exchange in the early 1990’s. The meadow is approximately 250 acres in size. Several perennial springs drain into the meadow. The surrounding uplands were previously harvested for timber, and cattle grazing is ongoing. Several layers of barbed wire fence surround the meadow. All are in varying states o[f] disrepair. Post restoration the fence will be repaired/replaced around the meadow, and grazing will take place for a restricted period each year until meadow recovery is well underway.

(Sept. 2008 AR 1823-1836.)

A May 2004 post-restoration review of Round Meadow was conducted by two forest hydrologists and a forest fisheries biologist. An evaluation showed that the project was “a huge success.” The report also stated that, “Another restoration aspect not shown in the photos is that the district is also currently constructing a fence to exclude cattle grazing indefinitely.” (AR 1747-1752.)

In 2004, U.S. Fish & Wildlife Service conducted a Species Assessment and determined that listing of the Oregon spotted frog continued to be “warranted but precluded.” (Sept. 2008 AR 1952.) The Forest Service Region 6 lists the Oregon spotted frog as a “Sensitive Species,” meaning that its viability is a concern due to significant current or predicted downward trends in populations or habitat. (Sept. 2008 AR 2419, 2850, 2854.)

In June 2005, the Forest Service conducted an ISSSP survey in various survey areas in the Forest including the Round Meadow Outlet, for sensitive mollusk species and opportunistic surveys for Oregon Spotted Frogs and aquatic lichen, (AR 1989, 1989-2030, 5212; see AR 2223-2227; Sept. 2008 AR 3272.) Another ISSSP survey in 2006 was conducted in the Forest including a portion of Round Meadow, for six sensitive mollusk species and an aquatic lichen. (AR 4651.)

In late 2005 or early 2006, in a document entitled, “Concerns about Oregon Spotted Frog” in the Jack Creek Drainage, the concern was expressed that the biological evaluation prepared for the Allotment grazing permit completed in 1995 did not address the Jack Creek population of spotted frogs and no biological evaluation had been completed to determine the impacts of grazing on the population. Completing a biological evaluation was recommended. (AR 1-3.)

In a May 2006 Allotment report, it was reported that six sensitive mollusks species and one endangered species had been found in surveys in 2005 and 2006. It was noted that, “Nearly every spring we visited is impacted by livestock, most are destroyed with no potential habitat left for mollusks.” It was also noted that no biological evaluation had been done to address these species. (Sept. 2008 AR 2581-2582, 2678-2679; see Sept. 2008 AR 3272.)

Permitted livestock grazing has occurred on the Allotment since 1909. (Sept. 2008 AR 402.) A 2006 permit issued to Lawrence and Marjorie Iverson authorizes grazing on the Allotment of 315 cow/calf pairs of cattle for the period of use from July 1 to September 30. (Sept. 2008 AR 2705-17.)

The 2006 Permit was modified in May 2008 to change the grazing season to August 1 to September 30. The modification further provided that “No grazing authorized on the [Allotment] until the Jack Creek Riparian Fence is completed and livestock access to Oregon Spotted Frog habitat along Jack Creek is controlled.” (Sept. 2008 AR 3760.)

While many threats to the Oregon spotted frog populations have been identified, one likely threat is livestock grazing. (AR 2244-51, 2270, 2511, 3933, 4442; Sept. 2008 AR 2076-2077, 2216-2217, 2337, 2338, 2850-2851, 2866-2867, 3540, 3824-3826.) In a March 2007 conservation assessment prepared by the Forest Service and the Bureau of Land Management, potential effects of grazing were identified as direct trampling, impacts on vegetation and secondary effects, and water quality changes, although cause-and-effect information was lacking. A preliminary analysis of a 2005 telemetry study at Jack Creek implied that Oregon spotted frogs preferred ungrazed enclosures as grazing pressure increased through summer. (AR 0003, 2247-48, 3933; Sept. 2008 AR 2337-2338.) Citing the 2005 study, a 2008 Allotment environmental assessment prepared by a consulting firm and an April 2010 species assessment for the Oregon spotted frog prepared by USFWS, each stated that a “moderate” level of livestock grazing would probably improve habitat, the 2010 assessment stating “if streambank vegetation were very dense,” by creating essential open water areas and allowing very cold water temperatures to increase. (AR 2709, 3933.) However, heavy grazing, such as was occurring on private lands on Jack Creek, “likely” was degrading the quality of frog breeding habitat and reducing reproduction. (AR 3933-34.)

In January 2008, Regional Forester Goodman sent the updated sensitive species list to forest supervisors. The letter included the statement that, “The effects of any action authorized, funded, or carried out by the FS on a Federal listed, Federal Proposed, or Sensitive species will be analyzed in a Biological Evaluation.” (AR 2458-2463.)

The 3.5 mile Jack Creek riparian fence constructed to control cattle access to the perennial reach of Jack Creek and provide protection to the Oregon spotted frog and its habitat on forest land was completed by early August 2008. (Sept. 2008 AR 3824-3826, 3856-3860; see AR 2441, 3882.)

In the AOI dated August 1, 2008, signed by District Ranger Fred Wahl, the Forest Service stated that the “2008 Authorized Use” was August 1 to September 30 of 419 pair (315 USFS and 104 private) in the Antelope pasture. (AR 2560-2565.) In a notation to authorized land use, the 2008 AOI provided: “There will be no cattle grazing on the parcels of NFS land encompassed by the upper and lower Jamison pasture fences, at least until completion of the Antelope Allotment AMP or, unless the Iversons independently fence their private land out from intermingled NFS property.” (AR 2561.) In the “Grazing Strategy” section of the AOI, it was stated that,

“Jack Creek is of special concern— Please manage the cattle by herding them away from the Jack Creek riparian fence in the early part of the grazing season and keep stock on the north part of the allotment in the later part of the season.

In addition to the proposed distribution schedule, the permittee needs to ride and check the newly created Jack Creek riparian fence to insure there is no breach of cattle to the no-graze portion of Jack Creek (i.e. behind the newly constructed fence). The permittee shall take quick action at a breach location to assure that cattle do not graze the closed-off area.

(AR 2562 (italics and bold in original).) Under “Herding,” it was stated that, “Keep cattle moving and away from riparian zones as often as possible.” (AR 2562.)

The Allotment was surveyed in September 2008 and September 2009 for terrestrial mollusks; species were found at most of the sites surveyed including the Round Meadow and Jack Creek Meadow sites. (AR 2626, 2666, 2615-67, 3223, 3510-38, 3546-54, 3628, 3627-28.) Some surveyors noted evidence of cattle such as manure and other impacts from cattle grazing. (See AR 1990, 1995, 2007, 2021-2022, 2028, 2638, 2648.)

Two modifications to the 2006 permit in May 2009 added the Jack Creek riparian fence to the maintenance responsibility of the permittee, (AR 4429), and reduced the permitted livestock numbers from 315 cow/ calf pairs to 275 cow/calf pairs for the July 1 to September 30 season of use, (Second Wahl Decl. & Att. 3). Permit Modification No. 3 states: “Reduction is to account for the Jack Creek Riparian pasture capacity that will not be available until the Allotment management Plan is updated.” (Second Wahl Decl. ¶ 4 & Att. 3.)

The 2009 AOI, dated June 10, 2009, and signed by Ranger District Fred Wahl, stated the “2009 Authorized Use” on the Antelope/Chemult Allotment was for July 1 to September 30 for 275 pair, plus 104 private. (AR 3225-3230.) The AOI states: “There will be no cattle grazing on the parcels of [NFS] land encompassed by the upper and lower Jamison pasture fences, at least until completion of the Antelope Allotment AMP or, unless the Iversons independently fence their private land out from intermingled NFS property.” In the “Grazing Strategy” section of the AOI, it was stated that, “Jack Creek is of special concern. No grazing is authorized within the Jack Creek Riparian Pasture or the Jamison Pasture.” (AR 3226) (italics and bold in original.) Under “Herding,” it was stated that, “Keep cattle moving and away from riparian zones as often as possible.” (AR 3227.) In the “Maintenance Responsibilities” section, it was stated: ‘Your responsibilities are for maintenance of the Antelope-Chemult Allotment boundary fence, along with the Jack Creek Riparian Fence. The boundary fences noted here are the boundaries with Tobin Cabin Pasture and the Jack Creek Sheep Allotment.” (AR 3227.)

A December 2009 wildlife end of season report was prepared regarding concerns for Oregon spotted frog on Jack Creek and sensitive mollusks in fen/spring habitats. The report noted that cattle were permitted to turnout without biological evaluations addressing the spotted frog or mollusks on the Allotment which was stated to be inconsistent with the Manual direction at section 2672.1, and the failures to complete biological evaluations put the agency in a difficult legal position. It was reported that cattle breached the exclosure fences into frog habitat on Jack Creek in late June through late October 2009, with observations on weekly basis and distributed all along the excluded area; despite effort to get cows out and electric wire, cows were “commonly seen” inside no-graze fenced area all season long. It was reported that cattle were “grazing and drinking freely” within sensitive mollusk species habitats in spring/fen complex in the Jack Creek headwaters and more than four dozen other smaller springs/fens habitat; manure and urine in water lowered water quality, and hoof action/postholing created pedestals and denuded vegetation; it was noted that “Habitat is being degraded/destroyed.” It was recommended that biological evaluations be completed and “appropriate action should be taken to control livestock and protect spring/fen habitat.” (AR 3678-3681.)

The Forest Service prepared a summary inventory of bryophyte and sedge wetlands found in the 2009 field season. The report noted that “Much of the suitable habitat on Chemult is located in the Jack Creek and Antelope grazing allotments, where wetlands and meadows provide a major part of the forage base for livestock.” Survey observations were that management activities were occurring at most of the sites: “Most of the potential and occupied habitat for the target species in this survey, and all but one of the newly detected sites are within either the Antelope cattle allotment or the Jack Creek sheep allotment.” It stated that the habitats are essentially fen plan communities for majority of sites. (AR 3683, 3687, 3771-3775, 3682-3689.)

A conservation agreement for the Oregon spotted frog was reached in early 2010 by the USFWS, the BLM, the Klamath Marsh National Wildlife Refuge, and the Forest Service. The purpose of the agreement is to protect and contribute to the conservation of the Oregon spotted frog by implementing conservation actions for the species on federal lands in the Klamath Basin. (AR 3740-3760.)

In March 2010, the permittee requested to be allowed to graze Round Meadow and some of the larger acreage exclosures in the 2010 grazing season. (AR 3807.) The permittee’s request to graze Round Meadow was denied. (AR 4204-4205.)

The 2010 AOI, dated June 15, 2010, provided for grazing On the Allotment on the Silver Lake Ranger District and on the Chemult Ranger District. (AR 4270-4275.) The AOI authorized 275 cow-calf pairs and 104 cow/ealf pairs private on the Chemult Pasture, a total of 379 cow/calf pairs, beginning mid-July, with all cattle moved onto the Chemult Pasture by August 1, and moved from the pasture beginning September 15, with 90% off Forest by September 30. (AR 4271^1272.) The AOI states:

The Jack Creek Riparian Pasture on the Chemult Pasture is still in a “no grazing” status until completion of a new Allotment Management Plan. This change was made with permit Modification # 3, dated May 7, 2009. It is your responsibility to maintain the Jack Creek Riparian fence in a manner that keeps cattle from accessing the riparian pasture and to monitor the area regularly to minimize/eliminate livestock impacts in this area. Cattle observed in the Jack Creek Riparian Pasture will be reported to you in a timely manner and it is my expectation that you will respond quickly to these reports. Any livestock in the Jack Creek Riparian Pasture will be moved out as soon as possible but no longer than 3 days of you receiving the report. If livestock accessing the Jack Creek Riparian Pasture becomes a chronic problem over the summer or you do not respond in a timely manner, I will consider permit action to rectify the situation.

(AR 4271.) In the “Herding” section of the AOI, it was stated that, “Keep cattle moving and away from riparian zones as often as possible.” (AR 4273.) The “Maintenance Responsibilities” section of the AOI stated: “Maintenance of structures needed to control livestock is an issue within the Antelope/Chemult allotment. We are assessing the condition of all structures on the allotment in preparation for a new Allotment Management Plan. Please refer to your Term Grazing permit for maintenance responsibilities.” (AR 4273.)

The permittee appealed the denial of the request to graze Round Meadow in the 2010 season. (AR 4423.)

Wetland Restoration and Oregon spotted frog monitoring in Jack Creek have been proposed for the years 2011-2015. (AR 4442-4443.)

Fen surveys were conducted in July 2010 for sensitive bryophytes. (AR 4447-4455.)

In a letter to the Forest Supervisor, District Ranger Machado explained that she had denied the permittee’s request to graze Round Meadow based on a lack of surveys and biological evaluations for sensitive species within the stated meadows. She indicated she had subsequently learned that “enough surveys, for the species in question, had been conducted in Round Meadow to allow for the completion of biological evaluations.” District Ranger Machado recommended that biological evaluations, including mitigations, be completed for the sensitive species “based on a proposed action of allowing some time-controlled grazing within Round Meadow for this season,” and that the grazing be allowed if the action would not cause a trend toward federal listing for the sensitive species. (AR 4729-4732.) The Forest Supervisor concurred. (AR 4766.)

During the last week of August 2010, District Ranger Sabo sent a scoping letter seeking comment regarding the proposed fence on Round Meadow to parties on the district public interest mailing list. He stated that the project qualified to be excluded from documentation in an EIS or EA, citing a regulation. Parties responded to the scoping letter and to the issue of cattle grazing on Round Meadow. (AR 4775, 4796-4799, 4800-4803, 4804-4807, 4808-4811, 4812 — 4815, 4816-4819, 4820, 4821-4823, 4841-4842, 4852-4855, 4856-4857, 4859-4860, 4872-4875, 4876-4880, 4881-4882; see AR 4899-4902, 4912.)

In August 2010, forest fisheries biologist and forest hydrologist conducted field reviews of Round Meadow for restoration review. They each assessed the effects of the proposed grazing on Round Meadow. The biologist concluded that the proposed level of livestock grazing would maintain the existing condition of the vegetated and simulated beaver dams in the meadow. The hydrologist concluded that the proposed grazing and exclusion of cattle from the 2 spring areas would be adequate to protect water resources in Round Meadow, (AR 4831-4834, 4835-4837.) The inter-agency soil scientist assessed the effects of the proposed grazing including the fencing of the wet areas around the springs and concluded that no detrimental effects on soils resource was anticipated as a result of the proposed action. (AR 4862-4863.) The forest wildlife biologist and forest botanist each assessed the effect of grazing on sensitive species and habitat inside and outside the temporary fence on Round Meadow. It was recommended that a fence be constructed to protect high quality mollusk habitat near springs. (AR 4838-4840, 4894-4896.)

Biological evaluations relating to the Round Meadow temporary fence were prepared in August and September 2010 by the forest wildlife biologist, the forest fisheries biologist, and the forest botanist. (AR 4776-4784, 4785-4795, 4885-4893.)

On September 3, 2010, District Ranger Sabo prepared a Decision Memo for installation of an electric fence in Round Meadow detailing his decision to implement a short-term closure to livestock grazing to protect springs and sensitive plant habitat within the Meadow. The fence would enclose approximately 75 acres of the 300-acre meadow, and be removed shortly after the September 30, 2010, close of the grazing season. He specifically found that no adverse effects to Forest Service sensitive species would occur. District Ranger Sabo found that his decision was excluded from documentation in an EA or EIS by a categorical exclusion relating to short-term resource protection. (AR 4899-4902, 4903.)

On that same date, District Ranger Sabo directed that an amendment to the 2010 AOI be prepared which would allow for time-limited grazing in Round Meadow from September 4 through September 30, 2010, of up to 80 head of livestock from among the livestock numbers already authorized under the permit. He noted that a temporary electric fence would be constructed. District Ranger Sabo stated;

I do believe that time-limited grazing can occur without detrimental damage to soils, hydrology, wildlife, aquatic, plants or heritage resources. I have received specialist information from Wildlife, Botany, Fisheries, Hydrology and Soils that has lead to my conclusion. I have two goals 1) Time limited grazing this field season and 2) Protection of springs, sensitive species habitats, heritage resources and restoration efforts that have already taken place.

In the directions for the amendment to the AOI, District Ranger Sabo included the following direction: “Occurrences of the sensitive bryophyte Tomentyprum nitens, identified and verified outside the temporary fence may require additional protection measures to be instituted as determined by the Forest Botanist.” (AR 4897-4898.)

An amended 2010 AOI dated September 7, 2010, was issued to the permittee authorizing the permittee to enter Round Meadow pasture beginning September 5 with up to 80 cow-calf pair, to be removed from the Round Meadow pasture and off the Allotment by September 30. An approximately /£ mile of electric fence on the pasture would protect sensitive groundwater dependent ecosystems and/or species. The amended AOI stated:

The electric fence will be critical to achieve the protection needed at the springs. It is imperative you monitor the status of this fence on a regular basis to assure that there is no compromise to its integrity. If through monitoring it is determined the fence cannot keep cows from the protected areas, you will clear the pasture of cows immediately-

(AR 4918-4919.)

In a September 17, 2010, memorandum to the file, forest environmental coordinator, Glen Westlund, considered the questions of whether the acquired lands from the land exchange became part of the Allotment and could grazing occur within Round Meadow, Relying on the FEIS and other documents, coordinator Westlund found that the acquired lands have been added to the Allotment and could be used for grazing; and “Grazing has not been excluded as an appropriate management activity from Round Meadow. Grazing needs to be controlled such as to not retard restoration effects.” In making these findings, he quoted portions of the EIS and noted that the acquired lands would be used for grazing without increasing grazing capacity and without modification to existing grazing permit; grazing capacity cannot be increased without updating the AMP through the NEPA process; grazing must be consistent with regulations and Forest Plan direction. He also cited the Round Meadow restoration project decision memo in which it was stated that the perimeter fence would control grazing during recovery. He stated, “As long as the grazing does not impact the ability to reach [recovery] goals, grazing can be permitted.” He compared the Round Meadow decision memo with others in which it was stated that fences were constructed to exclude cattle or prevent damage from cattle. As to those exclosures, coordinator Westlund stated that it would not be appropriate to allow grazing without additional NEPA analysis. (AR 4761^4764.)

LEGAL STANDARDS

Judicial review of agency action is governed by the Administrative Procedure Act (APA). 5 U.S.C. § 706. The reviewing court

must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (citations omitted), abrogated on another ground by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Agency decision-making is accorded a “presumption of regularity.” Akiak Native Cmty. v. U.S. Postal Serv., 213 F.3d 1140, 1146 (9th Cir.2000). While such review is deferential to the agency action taken, Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir.2008), the court must not “ ‘rubber-stamp’ ” the agency action as correct, N. Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F.Supp. 479, 482 (W.D.Wash.1988).

As pertinent here, the court may set aside an agency’s action if the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or if the action is found to be “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)(D). “ ‘[I]f an agency fails to consider an important aspect of a problem ... [or] offers an explanation for the decision that is contrary to the evidence,’ its action is arbitrary and capricious.” Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 888-89 (9th Cir.2007) (quoting Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005)). “An agency action is also arbitrary and capricious if the agency fails to ‘articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” ’ ” Friends of Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 12 F.Supp.2d 1121, 1131 (D.Or.1997) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

The parties have filed cross-motions for summary judgment. Because the court’s review under the APA is generally limited to the administrative record, see infra, no facts are in dispute. However, summary judgment may be used as a vehicle for the court to conduct its review of the record. The court’s role is “to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985).

DISCUSSION

Whether Plaintiffs’ Challenges to the 2008-2010 AOIs are Moot

Defendants contend that the expired AOIs are moot and plaintiffs do not fit within the extraordinary exception to the mootness doctrine. Plaintiffs respond that the capable of repetition yet evading review exception applies and also that, because effective relief is still available to remedy past violations, their claims are not moot.

“Generally, an action is mooted when the issues presented are no longer live and therefore the parties lack a legally cognizable interest for which the courts can grant a remedy.” Alaska Ctr. for Env’t v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir.1999) (citing Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)); Forest Guardians, 329 F.3d at 1094 (“ ‘The question is whether there can be any effective relief.’ ”); Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir.2002). The burden on a defendant of demonstrating that a case is moot is a heavy one, and “defendants in NEPA cases face a particularly heavy burden in establishing mootness.” Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir.2001).

Plaintiffs contend that the court can order the Forest Service to suspend or reduce grazing, or impose other measures which could mitigate the damage caused by the challenged grazing which would allow the resources to recover. The Ninth Circuit has found that, “where the violation complained of may have caused continuing harm and where the court can still act to remedy such harm by limiting its future adverse effects, the parties clearly retain a legally cognizable interest in the outcome.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir.1988). In Gordon, harm to the coho salmon population could be repaired or mitigated after the close of the fishing season by allowing more fish to spawn the following year. Similarly, in Forest Guardians, 329 F.3d at 1094, the court found that if the challenged activity was determined to violate NFMA, any damage to land could be mitigated by ordering the Forest Service to develop tactics such as moving or removing livestock from the allotments at issue. See Cantrell, 241 F.3d at 678-79 (effective relief “may still be available” despite destruction of bird habitat) (and cases cited).

Recently, Judge Haggerty in Oregon Natural Desert Association v. Tidwell, 716 F.Supp.2d 982, 993-95 (D.Or.2010), found that an NFMA challenge to pre-2009 annual grazing authorizations were not moot because “any damage could be remedied through injunctive relief restricting future grazing.” The court stated: “The grazing that takes place on each allotment during a season can have carryover affects [sic] that might last one or more seasons into the future. The fact that new annual grazing authorizations have been issued does not mean that damage from previous seasons cannot be remedied.” Id. at 994.

This court finds that the same is true here. Because effective relief may be available to remedy any alleged harms of which plaintiffs complain, the court finds that plaintiffs’ claims are not moot.

An exception to the mootness doctrine applies where the issue is capable of repetition yet evades review. This limited exception applies only to extraordinary circumstances where: “ ‘(1) the duration of the challenged action is too short to be fully litigated before it ceases; and (2) there is a reasonable expectation that the plaintiffs will be subjected to the same action again.’ ” Am.