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Perkins v. Bergland

Citation: 10 ELR 20070
No. No. 78-3659, 608 F.2d 803/(9th Cir., 11/21/1979) Rev'd

In a suit brought by holders of grazing permits contesting reductions in the numbers of animals which may be grazed thereunder on federal lands, the Court of Appeals for the Ninth Circuit reverses the district court's award of summary judgment to the government, 8 ELR 20833. After dismissing appellants' claim that the reductions in grazing privileges were in fact revocations of the permits, the court reviews the Federal Land Policy and Management Act and the Multiple-Use Sustained-Yield Act for the statutory limitations upon the Secretary of Agriculture's discretion to impose such restrictions upon grazing permittees. Because the general language found in the relevant parts of those statutes clearly confers wide discretion upon the Secretary when making such determinations, the appropriate standard of review is whether the action was arbitrary and capricious or reflects an abuse of discretion. It was an error for the district court to award summary judgment against appellants because it is conceivable that at trial they may be able to prove that the reductions were irrational or otherwise abusive of the Secretary's broad discretionary powers. The case is remanded for consideration of this narrow question.

Counsel for Appellants
William P. Mahoney
Suillivan, Mahoney & Tang
403 Luhrs Bldg., Phoenix AZ 85003
(602) 254-8861

Mitchell D. Platt
Platt & Hall, P.C.
P.O. Box 398, St. Johns AZ 85936
(602) 337-4932

Ronald A. Zumbrun, Robert K. Best
Pacific Legal Foundation
455 Capitol Mall, Suite 465, Sacramento CA 95814
(916) 444-0154

Counsel for Appellees
Michael A. Johns, Ass't U.S. Attorney
Room 5000, Federal Bldg., 230 N. First Ave., Phoenix AZ 85025
(602) 261-3011

Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Before HUFSTEDLER and GOODWIN, Circuit Judges, and HOFFMAN* District Judge.