## Facts

- The U.S. Forest Service (Forest Service) was authorized under the Federal Land Policy and Management Act (FLPMA) and related regulations to issue term grazing permits on National Forest lands, including setting and changing the number of livestock authorized to graze.
- In 1973, the Forest Service created the Barranca Allotment in the Cibola National Forest (New Mexico) by consolidating three allotments after range evaluations indicated generally poor conditions and a need for improved management.
- Weldon McKinley held a term grazing permit authorizing 201 head of cattle on the Barranca Allotment.
- The Forest Service conducted range analyses over time, including in 1973, 1977, 1978, 1988, and 1989.
- The techniques used in these analyses included Parker Three-Step Cluster studies (to compare conditions over time), paced transects (soil and vegetation observations at paced data points), and ocular estimates.
- In 1988, McKinley was advised that the Forest Service’s range studies recommended reducing livestock numbers on the allotment.
- Based on the range analysis, the Forest Service concluded that approximately 92% of the allotment was in poor or very poor condition and conditions were not improving.
- In 1989, the Cibola National Forest Supervisor decided to reduce the authorized use from 201 cattle to 112 cattle.
- McKinley pursued administrative review. The Deputy Regional Forester affirmed the reduction, and the Office of the Chief of the Forest Service declined further review, making the Deputy Regional Forester’s decision the final agency action.
- McKinley filed suit in the U.S. District Court for the District of New Mexico, challenging the grazing reduction under the Administrative Procedure Act (APA) and also arguing the agency’s action implicated takings concerns, including under Executive Order 12,630 and the Fifth Amendment.
- The case was presented on cross-motions based on the administrative record: defendants’ motion to affirm (or for summary judgment) and McKinley’s motion to set aside the decision (or for summary judgment).

## Issues

1. Was the Forest Service’s decision reducing McKinley’s authorized cattle numbers arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under APA review of final agency action?
2. Did the Forest Service’s failure to prepare a Takings Implication Assessment under Executive Order 12,630 provide a basis to set aside the grazing reduction?
3. Did the reduction in authorized livestock numbers under a National Forest term grazing permit constitute a compensable taking under the Fifth Amendment?

## Decision

- The court granted defendants’ motion and denied McKinley’s motion, affirming the final agency decision reducing authorized grazing from 201 to 112 head of cattle.
- The court held the Forest Service’s decision was supported by the administrative record and was not arbitrary or capricious under the APA.
- The court held Executive Order 12,630 did not create a judicially enforceable right or cause of action that would invalidate the reduction decision.
- The court held the grazing reduction was not a compensable Fifth Amendment taking because McKinley’s term grazing permit did not confer a compensable property interest in grazing on federal land at a fixed level.

## Legal Principles

- Under FLPMA and implementing regulations, the Forest Service may issue grazing permits, set permitted animal numbers, and modify, suspend, or cancel permits as part of managing National Forest lands.
- APA review under 5 U.S.C. § 706(2)(A) is narrow; the challenger bears the burden to show the agency action was arbitrary or capricious, and a court will not substitute its judgment for the agency’s technical judgment where the record shows reasoned decisionmaking.
- When an agency relies on repeated range assessments using recognized field methods and explains how those findings support a change in permitted use, a court will generally uphold the agency’s action if the explanation is rational and grounded in the record.
- Executive orders that function as internal executive-branch management directives generally do not create private, judicially enforceable rights absent express statutory authorization.
- A National Forest grazing permit is a revocable authorization subject to the terms of the governing statutory and regulatory scheme; it does not create a compensable property right in the use of federal range, and changes to authorized use levels therefore do not amount to a Fifth Amendment taking for lack of a protected property interest.

## Conclusion

The district court affirmed the Forest Service’s reduction of McKinley’s authorized grazing on the Barranca Allotment from 201 to 112 cattle, holding that the agency’s decision was supported by the administrative record and survived APA review, that Executive Order 12,630 provided no judicial basis to invalidate the action, and that the reduction did not constitute a compensable taking because the grazing permit did not confer a protected property interest in grazing federal lands at a fixed stocking level.


McKinley v. United States, 828 F. Supp. 888 (1993)