John C. Hughes (argued), Hughes, Hughes & Conlan, Phoenix, Ariz., for appellants.

Carl Strass and Terrence L. O'Brien (argued), Lands & Natural Resources Div., U. S. Dept. of Justice, Washington, D. C., for appellees.

Before WRIGHT and SNEED, Circuit Judges, and LINDBERG, District Judge.*

LINDBERG, Senior District Judge.

This appeal presents the question whether a federal court may review a refusal by the Department of Agriculture, Forest Service (forest service), to issue a special use permit to a so-called successor group of investors for operation of a resort in a national forest. The successor group of investors has appealed from an order of the district court1 granting the forest service's motion to dismiss for want of jurisdiction. We affirm for the reasons expressed below.

On May 18, 1965, the forest service issued2 a twenty year special use permit3 to the Ness Investment Corporation (NIC), an Arizona corporation. The permit authorized NIC, subject to numerous terms and conditions, to construct, operate and maintian a resort at Canyon Lake in the Tonto National Forest, approximately forty-six miles east of Phoenix, Arizona. Among the duties imposed upon NIC through the permit were: keeping a responsible management official on the site or immediately available; providing a sanitation system and related facilities; constructing roads, parking lots, buildings, water systems, a sewage disposal system and a gas storage system; meeting a schedule for development of the site and for installation of the enumerated facilities. It was the opinion of the forest service that NIC was not fully discharging its permit responsibilities, and on May 3, 1968, the regional forester attempted to revoke the permit. The board of forest appeals, in an order filed on July 24, 1969, held this attempt to have been effective.

The Secretary of Agriculture is authorized, under such regulations as he may make and upon such terms and conditions as he may deem proper, (a) to permit the use and occupancy of suitable areas of land within the national forests, not exceeding eighty acres and for periods not exceeding thirty years, for the purpose of constructing of maintaining hotels, resorts, and any other structures or facilities necessary or desirable for recreation, public convenience, or safety.... The authority provided by this section shall be exercised in such manner as not to preclude the general public from full enjoyment of the natural, scenic, recreational, and other aspects of the national forests.

Subsequently, in a letter dated September 24, 1969, the regional forester requested NIC to show cause why the permit should not be revoked. Through a memorandum of October 16, 1969, Berth C. Ness, chief executive officer of NIC, authorized William H. O'Brien to handle all negotiations with the forest service pertaining to the permit. On October 22, 1969, O'Brien wrote to the forest supervisor and noted only the following points: NIC had merged with a group of investors with experience in the resort business; arrangements had been made to satisfy most of the claims outstanding against improvements on the resort site; development and operation of the site had been prohibited by the forest service for two years; the bond securing the permit then remained in effect; with new management the terms and conditions of the permit could be met. The record does not reveal that any NIC response to the request to show cause was forthcoming. On May 4, 1970, the chief of the forest service revoked the permit by letter; the letter was sent to Berth C. Ness at his business address in Minnesota. The revocation was based upon the failure of NIC to comply with the terms of the permit. An appeal was filed.4

As a point of information, the involvement of O'Brien with the resort originally planned by NIC arose from O'Brien's apparent status as an NIC creditor and from the following series of events. Berth C. Ness and O'Brien entered into an agreement on January 9, 1969. Under the agreement, the First Southwest Small Business Investment Corporation (FSSBIC), of which O'Brien was then president, would receive title to all of the physical assets at Canyon Lake belonging to NIC. The agreement was subject to the condition both that the forest service approve transfer of the NIC permit and that financing be available. Preferred stock in the amount of $80,000.00 in a corporation to be organized by O'Brien was to have been issued to NIC in consideration for the transfer; in addition, FSSBIC was to have assumed all of the liabilities of NIC. A bill of sale dated November 1, 1969, evidenced the fact that NIC had conveyed all of its assets located at Canyon Lake to Canyon Lake Resort, Inc. (CLR). The bill of sale executed pursuant to the January 9, 1969, agreement. It appears that this agreement and transfer were executed in settlement of a legal action; for a state court in Arizona has adjudged that, at the time of the decree, FSSBIC held title to all of the improvements at Canyon Lake in which NIC had had an interest. First Southwest Small Business Investment Corp. v. Dick B. Roach and Jane Doe Roach, Berth C. Ness and Jane Doe Ness, and Ness Investment Corp., No. 21015, (Superior Court, Pinal County, Arizona, January 27, 1970).

By telegram dated January 15, 1970, O'Brien notified the regional forester that, as a result of court action in lieu of foreclosure, the November 1, 1969, bill of sale had been issued, and that FSSBIC had later assigned the assets to CLR. In a February 4, 1970, letter FSSBIC notified the forest supervisor of the January 27, 1970, judgment and made application for a transfer of the permit to CLR. The forest supervisor in a letter of March 16, 1970, denied the application for transfer of the permit; the forest supervisor felt that clause twelve of the NIC permit5 prohibited its transfer. In a letter written on April 10, 1970, O'Brien writing for FSSBIC, applied under clause twelve for a permit in favor of CLR. In that letter O'Brien again stated that FSSBIC had had title to the NIC assets and had transferred them to CLR. On January 29, 1971, O'Brien executed an assignment transferring all of the physical assets at Canyon Lake from FSSBIC and CLR to NIC.

Beginning on January 27, 1971, a hearing was held before the board of forest appeals concerning the May 4, 1970, revocation of the NIC permit. After the hearing a decision, of which no review has been sought, was rendered and an opinion was issued. In re: Ness Investment Corporation, Forest Service Docket No. 134 (November 4, 1971). The decision of the board of forest appeals was summarized at the conclusion of the opinion as follows. In re: Ness Investment Corporation, supra, pp. 11-12:

The decision of the Chief, Forest Service, is correct in that there are substantial breaches of the conditions of the special use permit issued to Ness Investment Corporation which warrant action to revoke the permit. However, before final revocation action, the Forest Service is directed to allow the O'Brien group to file an application under clause 12 of the permit setting forth the necessary facts and proof of ownership of physical assets at Canyon Lake. Such application shall be filed with the Forest Service not later than 60 days from the date of issuance of this decision, or within such additional time as the Chief of the Forest Service may grant for such purpose. Upon receipt of an application from the O'Brien group, timely filed, the Forest Service shall consider the application and determine whether the applicant is qualified under the criteria specified in clause 12 of the permit and any applicable standards prescribed by Regulation or the Forest Service Manual. If it is determined that the applicant is qualified and that a permit will be issued to the applicant, such action by the Forest Service will terminate this appeal. If, on the other hand, it is determined that the applicant is not qualified or is unwilling to accept such reasonable conditions as may be prescribed by the Forest Service for the issuance of such a permit or for inclusion in the terms of the permit, the permit of Ness Investment Corporation shall be revoked finally as of the date of the notice to the O'Brien group and Ness Investment Corporation by the Forest Service of such determination.6

Explication of the view of clause twelve taken by the board of forest appeals in its decision was included in the body of the opinion. In re: Ness Investment Corporation, supra, pp. 10-11:

Clause 12 of the permit specifically provides that a successor-in-interest to the permittee's improvements who is determined to be qualified as a permittee will be issued a permit subject to such new or additional conditions as the circumstances may warrant... It is the view of the Board that the O'Brien group has attempted to exercise the rights of a successor-in-interest to the permittee with the status granted it under clause 12 of the permit and that, on application of such a successor, the Forest Service should decide whether it is or is not qualified to succeed to the permit "subject to such new conditions and stipulations as existing or prospective circumstances may warrant...." The Board is not persuaded that the failure of the Ness Investment Corporation to perform the terms of the permit or the pendency of its appeal from the revocation action of the Chief of the Forest Service is any bar to consideration by the Forest Service of the application of the O'Brien group for a successor's permit pursuant to clause 12 of the existing permit. A reading of clause 12 of the permit suggests that it was intended to be utilized to permit a "salvage operation" of the type proposed by the O'Brien group. Our statements herein relative to clause 12 of the permit should not be taken to mean that the Forest Service is required to issue a permit to the O'Brien group but only that the O'Brien group is entitled to the consideration to be afforded a potential successor-in-interest under clause 12 of the permit.

On January 3, 1972, CLR filed an application for a special use permit. The application was denied by the forest supervisor in a letter dated February 7, 1972. Among the reasons given by the forest supervisor for denying the application were these: CLR had failed satisfactorily to show ownership of the improvements at the lake; the development plans submitted with the application were inadequate; the financial capacity of CLR was not demonstrated, although the application was accompanied by financial data concerning FSSBIC; the settlement of debts outstanding against the improvements had not been accomplished; a schedule establishing the sequence for construction of further improvements had not been submitted. On March 21, 1972, NIC, seeking review of the adverse decision of the forest supervisor, filed a motion for continuance of appeal with the board of forest appeals. This motion was denied because the board of forest appeals did not have jurisdiction to hear an appeal from the denial of an application for a special use permit. In re: Ness Investment Corporation, Forest Service Docket No. 134 (June 23, 1972).

On May 11, 1972, NIC and CLR had sought an injunction in the district court preventing the forest service from calling for new bids for construction of a resort at Canyon Lake and preventing the forest service from impounding the FSSBIC assets located upon the site. Pending resolution of the motion before the board of forest appeals for continuance of appeal, the district court had entered the requested injunctive order. The injunctive order was issued over the jurisdictional objections of the forest service. After a supplemental complaint was filed on September 18, 1972, the forest service again raised its jurisdictional point and moved to dismiss the action. This motion was granted by the district court.

The essential claims made in the original and supplemental complaints were: the forest service unreasonably, arbitrarily and capriciously denied the January 3, 1972, application of CLR. In support of these claims, NIC and CLR have suggested that, in rejecting the application, the forest supervisor ignored the November 4, 1971, decision of the board of forest appeals, failed to comply with pertinent statutes and regulations and with the provisions of the forest service manual and clause twelve of the original NIC permit, and improperly found the applicant to be unqualified to receive a special use permit.7 To these assertions and to the prayer for relief the court below expectably responded, Ness Investment Corp. v. United States Dept. of Agr., Forest Service, 360 F. Supp. 127, 128 (D.Ariz.1973):

It appears that plaintiffs seek to have the Court conduct a de novo hearing and find facts; and further, not only review the rejection of the application for a special use permit by Canyon Lake Resorts, Inc., but to usurp the powers of the Forest Service and judicially set conditions and terms for a use permit at Canyon Lake and make a factual determination whether Canyon Lake Resorts fulfilled those conditions. Thus, what the plaintiffs are asking of the Court is to be architect, planner, engineer, conservationist, water recreation expert, financier, etc., all rolled into one in setting such conditions. The Federal Courts have no jurisdiction and no expertise to set such conditions and terms for a use permittee.

In treating the question of the district court's jurisdiction to review, we must treat separately the two types of allegations put forward in support of the claims of NIC and CLR. After some rather lengthy preliminaries, we will first treat the allegation that the forest supervisor improperly found CLR to be unqualified to receive a special use permit. We will then treat the allegations that the forest supervisor acted in contravention of the November 4, 1971, decision of the board of forest appeals and that the forest supervisor failed to comply with statutes, regulations, provisions of the forest service manual, and clause twelve of the NIC permit.

Judicial review of administrative action is governed by the Administrative Procedure Act (APA).8 Two sections of that enactment, and their interaction, are of interest here: the section treating preclusion of review of agency action "committed to agency discretion by law; "9 and the section treating review of agency action found to be "an abuse of discretion."10 The inclusion of both of these provisions in the APA has sparked confusion by presenting the question whether action that may have been committed to agency discretion by law should still remain reviewable for abuse of discretion. Commentators and courts have disagreed.11 The claims presented to the court below and the decision rendered there require us, once again, to attempt an answer to this question.

In the opinion in Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 410 (1971) 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), the following statement appears:

... (T)he Secretary's decision here does not fall within the exception for action 'committed to agency discretion.' This is a very narrow exception. Berger, Administrative Arbitrariness and Judicial Review, 65 Col.L.Rev. 55 (1965). The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply'....

In Overton Park, the Secretary of Transportation had authorized the use of public funds for construction of a highway through a 342-acre city park in central Memphis, Tennessee. The secretary's action was challenged as in contravention of the Department of Transportation Act of 1966, as amended,12 and of the Federal-Aid Highway Act of 1968.13 These enactments prohibited the use of federal funds to finance construction of highways through public parks if a "feasible and prudent" alternative existed. Plainly, in Overton Park, there was law to apply; and review was warranted.

On several occasions decisions in this circuit concerning the "committed to agency discretion" exception have been rendered and have employed the rubric from Overton Park set forth above. See, e. g., National Forest Preservation Group v. Butz, 485 F.2d 408 (9th Cir. 1973), where review was permitted of the question whether an agency complied with specific statutory limitations on its authority. Moreover, opinions handed down in this circuit both pre- and post-Overton Park have suggested that allegations of arbitrary action or abuse of discretion warrant review, the "committed to agency discretion" exception notwithstanding. Reece v. United States, 455 F.2d 240 (9th Cir. 1972); Sugarman v. Forbragd, 405 F.2d 1189 (9th Cir. 1968), cert. denied, 395 U.S. 960, 89 S. Ct. 2103, 23 L. Ed. 2d 747 (1969). In Reece jurisdiction was found to review a claim that a certain regulation required the plaintiff's promotion; in Sugarman the court found no jurisdiction to review a claim that an agency wrongfully excluded from import certain coffee beans, and the court noted that arbitrary and capricious action in making an inspection or refusing to accept its results, clearly lacking in the agency action in Sugarman, might have required review.

But in the past, this circuit has also taken the position that review for abuse of discretion will not be undertaken where action has been committed to agency discretion. Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85 S. Ct. 1449, 14 L. Ed. 2d 286 (1965). In Ferry the court held that a decision of the Secretary of the Interior not to issue a cash certificate evidencing acceptance of an offer to purchase public land was not subject to review for abuse of discretion, because the decision to sell land was committed to agency discretion.14

These lines of cases may be rationalized by focussing on the type of question for which review was sought, rather than by focussing on ritualized allegations15 of arbitrary and capricious agency action. In considering the "committed to agency discretion" exception to review, this circuit has been, upon a proper showing, inclined to find jurisdiction to review allegations that an agency has abused its discretion by exceeding its legal authority or by failing to comply with its own regulations; but this circuit has not been quick to approve review of allegations that an agency abused its discretion merely by deciding an issue, involving agency expertise, adversely to a complaining party. This approach accords with the suggestion of the Supreme Court in Overton Park that review is required where there is law to apply. And it finds support in the decisions in United States v. George S. Bush and Co., 310 U.S. 371, 60 S. Ct. 944, 84 L. Ed. 1259 (1940) and Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S. Ct. 752, 2 L. Ed. 2d 788 (1958).

Much light has been shed on the subject of agency action committed to agency discretion by the opinion in Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970) (Tamm, J.). In Scanwell the court held that review of a decision by an agency to award a contract, which decision was allegedly in violation of certain statutes and regulations, was not precluded by the "committed to agency discretion" exception of the APA. It is stated in the opinion, 424 F.2d at 874ff.:

... (T)here is a 'general rule that official administrative action is reviewable in courts when a person claims injury from an act taken by a government official in excess of his powers'. ... (I)t is incontestable that many areas of government contracting are properly left to administrative discretion; the courts will not invade the domain of this discretion, but neither can the agency or official be allowed to exceed the legal perimeters thereof. Contracting officials can exercise discretion upon a broad range of issues confronting them; they may not, however, opt to act illegally. When the bounds of discretion give way to the stricter boundaries of law, administrative discretion gives way to judicial review. The regulations of the (agency) have the force of law. ... The procurement regulations also have the force of law.... When a prima facie showing of the violation of those regulations has been made the agency may not be heard to say that the matter in question has been left to its discretion.... (The defendant) ... is incorrect in his reliance on the argument that the nature of the decisions to be made in the federal procurement process places determinations made therein beyond the scope of judicial review. The argument is made that these determinations necessarily involve 'questions of judgment requiring close analysis and nice choices,' ... which cannot be judicially reviewed... The brief (of the defendant) goes on to cite in the margin the words of Mr. Justice Frankfurter ... to the effect that disputes involved in such cases do 'not present questions of an essentially legal nature in the sense that legal education and lawyers' learning afford peculiar competence for their adjustment.' In the current case the questions presented go precisely to the legality of the administrative action; the courts are more 'peculiarly competent' to decide such questions than any one else.

Thus we face the following alternative propositions: Where considerations of the language, purpose and history of a statute indicate that action taken thereunder has been committed to agency discretion: (1) a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions; (2) but a federal court does not have jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion consists only of the making of an informed judgment by the agency. In the subsections which follow, we apply these alternatives to the facts of the case at hand.

We now turn to the first of our two immediate problems: the reviewability of the decision of the forest supervisor that CLR was unqualified to receive a special use permit for construction of a resort. Counsel for NIC and CLR has made the argument that action under the statute16 is not committed to agency discretion. We disagree. The statute gives the Secretary of Agriculture general power to grant or deny a special use permit for use of national forest land for construction of a recreational facility. The secretary is "authorized," not required, to issue permits "under such regulations as he may make and upon such terms and conditions as he may deem proper," subject to the condition that the general public be not precluded from full enjoyment of the national forests. We have discovered no statutory restrictions or definitions prescribing precise qualifications for permittees. The question of who is qualified to receive a permit for construction or operation of a recreational facility has patently been left to the secretary or his delegate to answer. The statute is, with respect to the proper recipient of a special use permit, drawn in such broad terms that there is no law to apply.

Counsel for NIC and CLR has argued that the language, particularly the word "authorized," of the statute is neutral, indicating no clear congressional intention to commit to agency discretion the power to grant or deny a special use permit to a successor group of investors. In support of this proposition, counsel relies on Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308 (1938), where the word "authorized" as it was used in the Taylor Grazing Act17 was construed. Counsel rightly notes that, under the holding in Red Canyon Sheep, the context and purpose of the entire statute must be looked to before a court can determine whether judicial review is or is not permitted.

Other cases which have treated a similar problem arising under the Taylor Grazing Act include Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); Sellas v. Kirk, 200 F.2d 217 (9th Cir. 1952).

In these cases broad discretion was found to exist in areas similar to that with which we are here concerned. In considering the context and purpose of the statute, we find that we must disagree with counsel and that we share the view of the panels which decided Mollohan and Sellas. Agency expertise and knowledge is deeply involved in the decision to award a special use permit. What is needed, and where, are questions best answered by the forest service, which is involved on a daily basis with the management and use of the national forests. The federal courts have no such expertise, nor, in this case, do the courts have any standards by which acceptance or rejection of a particular applicant could be tested. These factors imply that the decision toward a special use permit for construction and operation of a recreational facility was left with the issuing authority and that Congress did not intend for the federal courts to redetermine the question who was qualified to receive a permit. Hi-Ridge Lumber Co. v. United States, 443 F.2d 452 (9th Cir. 1971). We hold that the decision here involved was committed to agency discretion by law and that federal courts have no jurisdiction to review such a decision.

We now turn to our second and more serious problem, the reviewability of allegations that the forest service did not act in conformity with law when rejecting the application for a permit presented by a successor-group of investors. We find this problem to be more serious, because it is the successor-applicant, often a creditor, who is most vulnerable to injury through denial of a permit. It is on this fact that counsel for NIC and CLR hits hardest; however, although the plight of the creditors of NIC is severe, we find under the present circumstances relief from the courts is not available.

We have treated the prior history of this matter fully and have reproduced excerpts from the statutes, regulations and pertinent decisions for the following reason: Taken at face value, the allegations in the complaint pertaining to the purported failure of the forest supervisor to conform to the November 4, 1971, mandate of the board of forest appeals, and to comply with pertinent regulations, provisions of the forest service manual and clause twelve of the NIC permit, state issues which are proper for judicial review.18 United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499, 98 L. Ed. 681 (1954); East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524 (9th Cir. 1972); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1958). In treating issues of this sort there is some law to apply, and certain questions of law, of the type which daily confront the courts, are presented. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). Thus the question whether the forest service acted in conformity with applicable law in receiving and handling the application for a special use permit submitted by a successor-group of investors does not wholly concern action rendered immune from judicial review because committed to agency discretion by law. And the court below did have jurisdiction to decide whether the forest service acted lawfully. Yet, upon consideration of the whole record, we hold that the district court properly dismissed the complaint, even though it contained allegations of the sort described.

Although the court below expressly dismissed the matter for lack of jurisdiction, it is apparent from reading the district court's order that the district judge considered the pertinent statutes, regulations, clause twelve of the permit, and the administrative decisions before dismissing the case. As to the allegations of the complaint treated in this section, it seems then that the district judge's action should have been characterized as, and was required to be, dismissal for failure to state a claim upon which relief could be granted. It was stated on the opinion in Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946):

... (I)t is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.

In light of our determination that the claims alleged warranted judicial review, if the judgment of the court below is to be sustained, it must be for failure of the complaint to state a claim, rather than for want of jurisdiction. If this ground is meritorious we may affirm, despite the fact that this was not the express ground upon which the district court relied. Harvey v. Sadler, 331 F.2d 387 (9th Cir. 1964).

Although allegations of a complaint must ordinarily be taken as true when a case reaches us in the present posture, the court is not required to read the allegations in isolation. Schilling v. Rogers, 363 U.S. 666, 80 S. Ct. 1288, 4 L. Ed. 2d 1478 (1960). And a general allegation that agency action was arbitrary, capricious or contrary to law adds nothing to a complaint. East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 535 (9th Cir. 1972). Here the facts pled, taken together with the administrative decisions made part of the record by the parties, affirmatively show that the particular assertions made with which we are concerned in this section fail to state a claim for relief. Clause twelve of the permit, pertinent provisions of the forest service manual, the applicable regulations, and the November 4, 1971, decision of the board of forest appeals make granting of a permit to a successor group of investors subject to the approval of the applicant's qualifications by the issuing forest officer. Put another way, the law that a court might here apply creates no strictures on the discretionary power of the forest officer to determine whether creditors who wish to salvage an operation run by a debtor permittee are themselves qualified to receive a permit. By making a determination that CLR was not qualified as a permittee, the forest service has not violated the law; rather it has employed its expertise and judgment in a way that the law has contemplated. Furthermore, the record affirmatively shows that any procedural requirements incumbent upon the forest officer in making his decision to grant or deny were met. Thus, the allegations in the complaint that the forest supervisor acted in a manner contrary to law are empty words.19

Counsel for NIC and CLR have argued that the statutes, regulations and decisions rendered pertaining to special use permits have created a preferred class of applicants to whom the forest service is obliged to issue permits. That class comprises salvaging creditors and other, so-called, successor groups of investors. The forest service, it is claimed, erred in failing to recognize the preference owing to CLR. Counsel for NIC and CLR apparently have derived the notion that CLR has a preferred right to a permit from a reading of Red Canyon Sheep Co. v. Ickes, 69 App.D.C. 27, 98 F.2d 308 (1938) and of Oman v. United States, 179 F.2d 738 (10th Cir. 1949). Those cases concern the issuance of sheep grazing permits under the Taylor Grazing Act.20 The preference mentioned derives from an express provision of the act.21 No such provision appears in the statutes and regulations applicable in the instant case. For that reason, and for others which we do not here state, we find the cited cases inapposite.

The decision of the district court is affirmed. The determination by the forest service whether an applicant for a special use permit is qualified to receive a permit is action committed to agency discretion by law and therefore unreviewable in the federal courts. A federal court has jurisdiction to determine whether the forest service has acted in conformity with law in receiving and handling an application for a special use permit submitted by a successor group of investors. But because the record affirmatively shows that applicable law was complied with in handling such an application, the successor group of investors herein involved has failed to state a claim upon which relief could be granted.