Fed Lands Legal Consortium v. USA

• Decision Date: 28 October 1999
• Docket Number: No. 98-2211,98-2211
• Citation: 195 F.3d 1190
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: (10th Cir. 1999) FEDERAL LANDS LEGAL CONSORTIUM, on behalf of its members; E.A. ROBART ESTATE; ROSE COLEMAN; HERSCHEL DOWNS; RAMONA DOWNS; R. R. DRACHMAN; D. DRACHMAN; DAN HEAP; GLEN MCCARTY; MARIAN C. ROBART; WALTER L. WILTBANK; EMER WILTBANK; ESTHER WILTBANK; LAZY YJ RANCH; W. QUINSLAR; B. QUINSLAR; FOST FLAKE; GAYLAN FLAKE; MARLIN L. MAXWELL; C. R. TRUELOCK; WILLIAMS RANCH; GAYLORD "BOB" YOST; LUCINDA YOST; HAROLD B. LESUEUR; BUTLER FARMS; ZENO KIEHNE; HUGH MCKEEN; JOE MILLIGAN; LUCILLE MILLIGAN LUMPKIN; FOWLER CATTLE CO., Plaintiffs - Appellants, and APACHE COUNTY, ARIZONA; CATRON COUNTY, NEW MEXICO, Plaintiffs, v. UNITED STATES OF AMERICA; DAN GLICKMAN, Secretary of the United States Department of Agriculture; MICHAEL DOMBECK, Chief of the United States Forest Service; CHARLES CARTWRIGHT, Regional Forester, Southwestern Region; ABEL CAMARENA, Forest Supervisor for the Gila National Forest; JOHN BEDELL, Forest Supervisor for the Apache-Sitgreaves National Forest, Defendants - Appellees, NATIONAL WILDLIFE FEDERATION, Amicus Curiae

Page 1190

195 F.3d 1190 (10th Cir. 1999)

FEDERAL LANDS LEGAL CONSORTIUM, on behalf of its members; E.A. ROBART ESTATE; ROSE COLEMAN; HERSCHEL DOWNS; RAMONA DOWNS; R. R. DRACHMAN; D. DRACHMAN; DAN HEAP; GLEN MCCARTY; MARIAN C. ROBART; WALTER L. WILTBANK; EMER WILTBANK; ESTHER WILTBANK; LAZY YJ RANCH; W. QUINSLAR; B. QUINSLAR; FOST FLAKE; GAYLAN FLAKE; MARLIN L. MAXWELL; C. R. TRUELOCK; WILLIAMS RANCH; GAYLORD "BOB" YOST; LUCINDA YOST; HAROLD B. LESUEUR; BUTLER FARMS; ZENO KIEHNE; HUGH MCKEEN; JOE MILLIGAN; LUCILLE MILLIGAN LUMPKIN; FOWLER CATTLE CO., Plaintiffs - Appellants, and APACHE COUNTY, ARIZONA; CATRON COUNTY, NEW MEXICO, Plaintiffs, v. UNITED STATES OF AMERICA; DAN GLICKMAN, Secretary of the United States Department of Agriculture; MICHAEL DOMBECK, Chief of the United States Forest Service; CHARLES CARTWRIGHT, Regional Forester, Southwestern Region; ABEL CAMARENA, Forest Supervisor for the Gila National Forest; JOHN BEDELL, Forest Supervisor for the Apache-Sitgreaves National Forest, Defendants - Appellees, NATIONAL WILDLIFE FEDERATION, Amicus Curiae.

No. 98-2211

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

October 28, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. 97-1126 HB/JG

[Copyrighted Material Omitted] Roger T. Williams (Karen Budd-Falen, Budd-Falen Law Offices, P.C., Cheyenne, Wyoming; Lee Peters, Hubert & Hernandez, Las Cruces, New Mexico, with him on the briefs), for Plaintiffs-Appellants.

Lisa E. Jones, United States Department of Justice, Washington, D.C. (Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resource Division, Martin W. Matzen, Andrew A. Smith, John J. Kelly, United States Attorney, John Zavitz, Assistant United States Attorney, with her on the brief), for Defendants-Appellees.

James B. Dougherty, Washington, D.C., filed a brief for Amicus Curiae National Wildlife Federation.

Before BALDOCK, HOLLOWAY and HENRY, Circuit Judges.

HOLLOWAY, Circuit Judge.

This appeal concerns the denial of the Federal Lands Legal Consortium's (FLLC) motion for a preliminary injunction to enjoin the modification of grazing permits by the United States Forest Service. See Unpublished Memorandum Opinion and Order, Addendum A to Appellants' Corrected Opening Br. We have jurisdiction pursuant to 28 U.S.C. 1292(a)(1).

I.

FLLC consists of individuals who hold livestock grazing allotments in the Gila National Forest in New Mexico and the Apache-Sitgreaves National Forest in Arizona. I App. 1. In early 1995, the United States Forest Service (Forest Service) initiated allotment-specific National Environmental Policy Act (NEPA), 43 U.S.C. 4321 et seq., processes for reauthorization of grazing on FLLC members' allotments.¹ I App. at 5. The processes were completed for the Gila Forest allotments prior to the expiration of existing permits. Based upon the analysis of the processes, the Forest Service issued new permits to FLLC members but imposed restrictions that limited the amount of forage which cattle on the allotments in the Gila Forest could consume.

The Forest Service did not complete the processes for the Apache-Sitgreaves Forest prior to the expiration of grazing permits. Thus, new permits were issued to those FLLC members with no new conditions or standards.² However, upon completion of the processes, the Forest Service submitted three proposals for implementing needed conditions for continued grazing on the Apache-Sitgreaves allotments. FLLC members commented on the three proposals pursuant to 36 C.F.R. part 215 (1997). I App. at 16, 38. The Forest Service eventually selected the "Balance with Capacity" alternative, reasoning that this proposal best protected species listed on the Endangered Species List. I App. at 39; 166-67. Using the "Balance with Capacity" standard, the Forest Service issued new permits to FLLC members holding allotments in the Apache-Sitgreaves National Forest. As a result, alleges the FLLC, grazing rights were substantially reduced,³ II App. at 72, but the reductions occurred incrementally over a three-year period. Each decision issuing the new permits was supported by a detailed site-specific EA prepared pursuant to NEPA.

FLLC members administratively appealed the Forest Service decisions to modify the permits pertaining to both the Gila and the Apache-Sitgreaves Forests pursuant to 36 C.F.R. part 251. I Supp. App. at 116. The members requested a trial-type adjudicatory hearing before an independent Administrative Law Judge, I App. at 317A, a request the Forest Service denied. I App. at 6. Upon denial, the FLLC permit holders availed themselves of the two levels of mandatory appeals as provided for in 36 C.F.R. 251.87. At the first level of appeal, which is before a Reviewing Officer, permit holders are allowed to make informal presentations as a matter of right. 36 C.F.R. 251.90(c), 36 C.F.R. 251.97(b). FLLC members made such oral presentations before the Forest Service Reviewing Officer. II Supp. App. at 320.

The Forest Service's Reviewing Officer denied all of the members' appeals. II Supp. App. at 299-318. FLLC members utilized the second level of appeal before the Regional Forester. The Regional Forester, in a written, detailed response, upheld the Reviewing Officer's decisions. II Supp. App. at 319-35. FLLC members requested a discretionary review of the Regional Forester's decision, which was denied.

In August 1997, FLLC filed the instant suit in the United States District Court for New Mexico alleging violations of procedural due process as secured by the Fifth Amendment to the United States Constitution, inter alia. I App. at 1, 21.⁴ In March 1998, FLLC filed a motion in that suit for a preliminary injunction to enjoin the Forest Service from modifying the pre-1996 grazing permits FLLC members held. I Supp. App. at 111. The district court denied the motion for a preliminary injunction. Memorandum Opinion and Order 2, 12.

The judge reasoned that FLLC could not show a substantial likelihood of success on the merits because the procedures afforded to FLLC members by the Forest Service were sufficient to satisfy procedural due process. Id. at 7, 9. The judge noted that FLLC members are entitled to written notice of appealable decisions, the right to appeal the decision to a Reviewing Officer, a required response to the notice of appeal, and the right to ask for informal oral presentations before the Reviewing Officer. Together, this "extensive appeals process satisfied all due process requirements." The district judge further found that FLLC had established irreparable harm if the preliminary injunction were denied, but held that the balancing of harms favored the Forest Service due to the potential injury to the environment and endangered species and, thus, the public interest outweighed the hardships from denial of the injunction. Id. at 11-12. This timely appeal followed.⁵

II.

A.

We review the denial of a motion for a preliminary injunction for abuse of discretion. See Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1489 (10th Cir. 1997). To obtain a preliminary injunction, the party requesting such an extraordinary equitable remedy bears the burden of showing: (1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. See id.

This court has adopted a modified requirement as to the likelihood of success as the district judge correctly noted. If the movant has established the other three requirements for a preliminary injunction (requirements (2), (3), and (4) above), the movant may satisfy requirement (1) by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. See Walmer v. United States Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995).

B.

FLLC's motion for a preliminary injunction was based on FLLC's claim of deprivations of procedural due process when the Forest Service altered their members' grazing permits. We analyze below the two general actions on the permits: changes in the terms and conditions of permits during the permit renewal process for the Gila Forest, and changes made after the issuance of new permits for the Apache-Sitgreaves Forest.

The Fifth Amendment protects individuals from deprivations of "life, liberty, or property, without due process of law." U.S. Const. amend. V. The Amendment therefore requires an individual to prove that he or she was deprived of a protected interest and that the deprivation occurred without the "appropriate" level of process. See Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999). Here, the district court assumed that FLLC's members had a protected property interest in the terms and conditions of their grazing permits, but held that the Forest Service provided FLLC's members with all of the process that they were due. This sequence of analysis has been followed in several instances by this court and others in considering claims of denial of procedural due process. See Hoyl v. Babbitt, 129 F.3d 1377, 1386 (10th Cir. 1997) ("We need not decide, however, whether Plaintiff had a protected property interest in a 39 suspension, because even assuming Plaintiff had a right to due process regarding the suspension, the process afforded by the IBLA and later by the district court satisfies any such right."); Derstein v. Kansas, 915 F.2d 1410, 1413 (10th Cir. 1990) (same); Landmark Land Co. of Oklahoma v. Buchanan, 874 F.2d 717, 723 (10th Cir. 1989) (same); Meder v. City of Oklahoma City, 869 F.2d 553, 554 (10th Cir. 1989) (same); Seibert v. University of Oklahoma Health Science Center, 867 F.2d 591, 599 (10th Cir. 1989) (same...