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 …
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