ELR Citation: ELR 21319
No(s). 91-822-LH/RWM (D.N.M. May 28, 1993)

The court holds that a U.S. Forest Service decision to reduce the number of cattle permitted to graze on a grazing permit holder's range allotment is not arbitrary and capricious, does not violate Executive Order No. 12630, and is not a compensable taking. Under the §402(a) and (e) of the Federal Land Policy and Management Act, the Forest Service may change a grazing permit's terms based on resource condition. Although dispute existed about whether the grazing range's condition was improving or deteriorating, the court holds that, under the permit, it is the range's current condition, not the trend in its condition, that is determinative of grazing capacity. Because the permit holder did not meet his burden of proving that no record evidence existed to support the agency's methodology in gathering and evaluating the range assessment data that prompted the decision, the court holds that the decision is not arbitrary and capricious. Next, the court holds that Executive Order No. 12630, which requires federal agencies to assess the impact of proposed actions on private property rights, is not a basis for judicial review of agency actions. Moreover, case law supports the Forest Service's decision that a takings assessment was not required. Finally, the court holds that the reduction in the number of cattle allocated under the permit is not a taking of private property. The use of federal land for grazing is a privilege that may be withdrawn at any time without compensation. Additionally, the reduction in the value of permit holder's base property caused by the reduced allocation is not compensable.

Counsel for Plaintiff
Harold Stratton
Stratton & Cavin
P.O. Box 1216, Albuquerque NM 87103
(505) 243-5400

Counsel for Defendants
John Zavitz, Ass't U.S. Attorney
U.S. Attorney's Office
P.O. Box 607, Albuquerque NM 87103
(505) 766-3341