Mckeen v. United States Forest Serv., 08-2290.

Citation615 F.3d 1244
Decision Date02 August 2010
Docket NumberNo. 08-2290.,08-2290.
PartiesHugh B. McKEEN, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, an Agency of the United States Department of Agriculture; Tom Vilsack, in his official capacity as Secretary of the United States Department of Agriculture; Tom Tidwell, in his official capacity as Chief of the Forest Service; Corbin L. Newman, in his official capacity as Regional Forester for the Southwest Region, State of New Mexico; Richard E. Markley, in his official capacity as Forest Supervisor of the Gila National Forest, State of New Mexico; Pat Morrison, in her official capacity as the Glenwood District Ranger in the Gila National Forest, Defendants-Appellees. *
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)



Karen Budd-Falen, and Kathryn Brack Morrow, Budd-Falen Law Offices, LLC, Cheyenne, WY, for Plaintiff-Appellant.

Ignacia S. Moreno, Assistant Attorney General, Aaron P. Avila, Andrew A. Smith, and Susan L. Pacholski, Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees.

Before BRISCOE, Chief Judge, HAWKINS ** , and O'BRIEN, Circuit Judges.

BRISCOE, Chief Judge.

For more than forty years, the United States Forest Service (hereinafter Forest Service) has granted Plaintiff Hugh B. McKeen and his family a series of term livestock grazing permits to graze cattle and/or horses on the Cedar Breaks Allotment in the Glenwood Ranger District of the Gila National Forest in Catron County, New Mexico. Recently, McKeen sought to have several Forest Service actions which affected these permits set aside pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. The district court denied each of McKeen's requests for relief and McKeen filed this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM in part and VACATE in part. With respect to those claims which we vacate, we REMAND to the district court with instructions to DISMISS as moot. 1

I Statutory/Regulatory Background

Pursuant to Section 19 of the Granger-Thye Act of 1950, Pub.L. No. 97-478, § 19, 64 Stat. 82, 88 (1950) (codified at 16 U.S.C. § 580 l ), Congress has authorized the Secretary of Agriculture to allow livestock to be grazed on specified allotments within the National Forest System. The Secretary of Agriculture, through the Forest Service, authorizes such grazing by issuing (1) Forest Plans, see generally 16 U.S.C. § 1604; 36 C.F.R. § 219.1-.16; (2) Allotment Management Plans (“AMPs”), see 43 U.S.C. § 1752(d); 36 C.F.R. §§ 222.1(b)(2), 222.2; (3) term grazing permits, see 43 U.S.C. § 1752(a); 36 C.F.R. §§ 222.1(b)(5), 222.3; and (4) Annual Operating Instructions 2 (“AOIs”).

As we have previously explained,

[A] Forest Plan [is] a broad, programmatic document, accompanied by an environmental impact statement and public review process conducted in accordance with the National Environmental Policy Act. 42 U.S.C. § 4331 et seq. [ (“NEPA”) ]; see also 16 U.S.C. § 1604(d); 36 C.F.R. § 219.10(b). The Forest Plan must incorporate multiple forest uses, and thus coordinate the management of “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). The Forest Plan must also “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” Id. at § 1604(g)(3)(B).

Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167-68 (10th Cir.1999) (footnote omitted).

An AMP, meanwhile, [p]rescribes the manner in and extent to which livestock operations will be conducted” within a designated area, or allotment, within a certain national forest. See 36 C.F.R. § 222.1(b)(2)(i). While an AMP is not a necessary prerequisite to the issuance of a grazing permit, see 43 U.S.C. § 1752(d), (e), when one is created it [d]escribes the type, location, ownership, and general specifications for the range improvements in place or to be installed and maintained on the land to meet the livestock grazing and other objectives of land management,” 36 C.F.R. § 222.1(b)(2)(ii). AMPs must be consistent with the Forest Plan for the forest in which the allotment sits. Id. § 222.2(c); see also 16 U.S.C. § 1604(i). Indeed, “the AMP relates the directives of the applicable [F]orest [P]lan to the individual grazing allotment....” Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 980 (9th Cir.2006).

A grazing permit grants its recipient a license to graze livestock on certain designated allotments “in accordance with provisions of the ... [relevant] Forest Service policies,” including the relevant Forest Plan and any relevant AMPs. See 36 C.F.R. § 222.3(c)(1); see also 43 U.S.C. § 1752(a), (d), (e). Notably, grazing permits “convey no right, title, or interest held by the United States in any lands or resources.” 36 C.F.R. § 222.3(b); accord 43 U.S.C. § 1752(h). Rather, they merely grant a license “and establish[ ]: (1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use.” Or. Natural Desert Ass'n, 465 F.3d at 980 (citing 43 U.S.C. § 1752; 36 C.F.R. §§ 222.1-222.4). Typically, a grazing permit is issued for a period of ten years, see 36 C.F.R. § 222.3(c)(1); see also 43 U.S.C. § 1752(a), and, [a] term permit holder has first priority for receipt of a new permit at the end of the term period provided he has fully complied with the terms and conditions of the expiring permit.” 36 C.F.R. § 222.3(c)(1)(ii); see also 43 U.S.C. § 1752(c).

Finally, AOIs are signed agreements between the Forest Service and grazing permit recipients which set forth the parameters of the permit holder's license for the upcoming year. See Forest Service Manual § 2212.3. As the Ninth Circuit explained:

Because an AOI is issued annually, it is responsive to conditions that the Forest Service could not or may not have anticipated and planned for in the AMP or grazing permit, such as drought conditions, timing and duration of rainfall over the grazing season, success or failure of habitat restoration projects, water quality, or degree of risk to threatened or endangered species affected by grazing.

Or. Natural Desert Ass'n, 465 F.3d at 980-81.

Factual/Procedural Background

The Forest Service first issued McKeen's family a permit to graze livestock on the Cedar Breaks Allotment in 1968 and subsequent permits have been issued to McKeen and his family in 1976, 1985, 1996, and most recently, in 2004. The 2004 permit is set to expire on December 31, 2013.

Despite the Forest Service's long history of permitting McKeen and his family to graze livestock on the Cedar Breaks Allotment, over time McKeen's relationship with the agency began to deteriorate. Prior to the instant action, McKeen joined a group of plaintiffs who, in 1998, filed a lawsuit challenging several Forest Service actions which affected grazing within the Gila National Forest. See N.M. Pub. Lands Council v. United States, No. 1:98-cv-00984 (D.N.M. filed Aug. 14, 1998). Among the Forest Service actions challenged in the 1998 lawsuit was the agency's decision to exclude livestock from the San Francisco River, a waterway which runs through portions of the Cedar Breaks Allotment.

The 1998 lawsuit eventually settled in the fall of 2000. The Forest Service agreed, inter alia, to “complete a site-specific analysis pursuant to [NEPA] for ... the Cedar Breaks [Allotment],” 3 and agreed that “the NEPA analys[is] w[ould] result in an administratively appealable decision by July 15, 2001.” Aplee. Supp. at 9. McKeen and his co-plaintiffs agreed to abide by the terms of their 2000 and 2001 AOIs “until any new or revised [AMPs] and permits [were] in place following the NEPA process and any administrative appeals.” Id. However, despite this settlement, disputes continued between McKeen and the Forest Service.

In the immediate aftermath of the settlement, issues between McKeen and the Forest Service centered primarily around McKeen's continued grazing and/or other incidental use of certain portions of the Cedar Breaks Allotment near the San Francisco River. During this period, the Glenwood District Ranger repeatedly warned McKeen that use of this area was forbidden by the terms of his term grazing permit and/or AOIs. Nevertheless, Forest Service personnel continually observed McKeen's livestock grazing in this area. Eventually, this dispute led the Glenwood District Ranger to send McKeen a letter dated May 15, 2001, explaining that due to his non-compliance, the District Ranger was suspending 20% of the number of livestock McKeen was previously permitted to graze for a period of one year, effective June 1, 2001. McKeen challenged this decision by filing an administrative appeal of the District Ranger's action in June of 2001, but the parties eventually reached a mediated settlement in July of 2001. Pursuant to this settlement agreement, the District Ranger reduced McKeen's permit suspension to 5% for one year with a warning that continued violations of the terms of McKeen's permit would result in a permanent cancellation of 5% of the permitted number of livestock and an additional 20% suspension for two years.

McKeen agreed, conversely, to “pursue a conservation agreement ... with the U.S. Fish and Wildlife Service that may allow him the opportunity for incidental or miscellaneous use of [certain property within the Cedar Breaks Allotment].” Aplt.App. at 290. Further, it was agreed that if McKeen was granted incidental use of this property, the Forest Service would provide fencing materials and two cattle guards for McKeen to install to aid in his use of the property. If, however, McKeen was not granted incidental use of the property, the Forest Service agreed to purchase fencing material and to build the fence necessary to keep McKeen's cattle off of the property, but it was agreed that...

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