Federal Lands Legal Consortium v. United States
Citation: 30 ELR 20155
No. No. 98-2211, 195 F.3d 1190/49 ERC 1136/(10th Cir., 10/28/1999)
The court holds that the U.S. Forest Service's modification of the terms and conditions of grazing permits for the Gila and Apache-Sitgreaves National Forests did not deprive permit holders of procedural due process under the Fifth Amendment. The court first holds that the permit holders have not demonstrated that they have a property interest in the terms and conditions of previous Gila Forest permits during the permit renewal process. The statutory scheme gives the Forest Service discretion to change the terms and conditions during the permit renewal process. That the Forest Service customarily did not exercise that discretion creates, at best, a unilateral expectation that the Forest Service would continue that practice. That expectation, however, is insufficient to establish a property interest. The court also holds that the permit holders have not shown aproperty interest in the terms and conditions of the permits for the Apache-Sitgreaves Forest as issued. The Forest Service issued the permits pursuant to an express congressional authorization that stated that permits issued before the completion of National Environmental Policy Act (NEPA) analysis may be modified if necessary to conform to such NEPA analysis. Because Congress expressly allowed the Forest Service to alter the terms and conditions of the permits after the completion of the NEPA analysis, the permit holders cannot successfully premise a legitimate claim of entitlement to the terms and conditions of the permits as issued. The court, therefore, holds that the district court did not abuse its discretion in denying the permit holders' motion for a preliminary injunction to enjoin the modification of the grazing permits.
Counsel for Plaintiffs
Roger T. Williams
Budd-Falen Law Offices
623 W. Second St., Cheyenne WY 82001
Counsel for Defendants
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Before Baldock and Henry, JJ.