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Buckingham v. Secretary of the U.S. Dep't of Agriculture

April 29, 2010

KENNETH R. BUCKINGHAM, PLAINTIFF-APPELLANT,
v.
SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE; CHIEF OF THE FOREST SERVICE; REGIONAL FORESTER FOR THE INTERMOUNTAIN REGION OF THE FOREST SERVICE; FOREST SUPERVISOR OF THE HUMBOLDT-TOIYABE NATIONAL FOREST OF THE FOREST SERVICE; DISTRICT RANGER FOR THE SANTA ROSA RANGER DISTRICT OF THE FOREST SERVICE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada, Brian E. Sandoval, District Judge, Presiding, D.C. No. 3:07-cv-00073-BES-RAM.

The opinion of the court was delivered by: Milan D. Smith, Jr., Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted March 1, 2010 -- Portland, Oregon.

Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.

OPINION

Plaintiff Kenneth R. Buckingham filed a complaint in the District of Nevada against the Secretary of the United States Department of Agriculture, the Chief of the United States Forest Service, the Regional Forester for the Intermountain Region, the Forest Supervisor for the Humboldt-Toiyabe National Forest, and the District Ranger for the Santa Rosa Ranger District (collectively, the Forest Service). Bucking-ham sought judicial review, pursuant to the Administrative Procedure Act (APA), of the Forest Service's decision to cancel his permit to graze cattle in the Santa Rosa Ranger District of the Humboldt-Toiyabe National Forest, claiming, inter alia, that the Forest Service: (1) erroneously enforced a permit lacking clearly defined pasture boundaries; (2) violated Buck-ingham's Fifth Amendment procedural due process rights by not affording him adequate pre- or post-deprivation procedures; (3) failed to give him notice and an opportunity to demonstrate or achieve compliance as required by the APA, 5 U.S.C. § 558(c); and (4) improperly considered Bucking-ham's prior history of non-compliance with his permit in making its decision. The district court upheld the Forest Service's decision, and this appeal followed. We have jurisdiction to review this decision under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

I. Legal Background

The Forest Service manages 155 national forests, 20 national grasslands, and 8 land utilization projects on over 191 million acres of land within the United States (collectively, the National Forest System). 36 C.F.R. § 200.1. The Forest Service administers the National Forest System under the National Forest Management Act of 1976 (NFMA), 16 U.S.C. §§ 1600-1614, which "establishes a two-step process for forest planning," Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 957 n.1 (9th Cir. 2005). First, the Forest Service develops a land and resource management plan (Forest Plan) for each unit of the National Forest System. Id. (citing 16 U.S.C. § 1604(a)). Second, "the Forest Service implements each Forest Plan by approving or disapproving site-specific actions." Id.

The Forest Service authorizes grazing within the National Forest System on "allotments" pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701-1787. "Allotments" are "designated area[s] of land available for livestock grazing." 36 C.F.R. § 222.1(b)(1). The Forest Service divides allotments into smaller areas, referred to as "units" or "pastures." Or. Natural Desert Ass'n v. U.S. Forest Serv. (ONDA), 465 F.3d 977, 979 n.2 (9th Cir. 2006).

The Forest Service exercises its authority under the FLPMA to permit grazing on allotments by way of three different types of site-specific actions, see ONDA, 465 F.3d at 979-80, all of which must be consistent with the applicable Forest Plan, see 16 U.S.C. § 1604(i). First, the Forest Service issues grazing permits, which are "document[s] authorizing livestock to use National Forest System or other lands under Forest Service control for the purpose of livestock production." 36 C.F.R. § 222.1(b)(5); see also 43 U.S.C. §§ 1702(p), 1752(a). Typically, a grazing permit will specify: "(1) the number, (2) kind, (3) and class of livestock, (4) the allotment to be grazed, and (5) the period of use." ONDA, 465 F.3d at 980. The standard term of a grazing permit is ten years. See 43 U.S.C. § 1752(b); 36 C.F.R. § 222.3(c)(1). The Forest Service "is authorized to cancel, modify, or suspend grazing and livestock use permits in whole or in part" if the permittee fails to comply with the requirements of his or her permit, or with governing regulations. Id. § 222.4(a)(4).

Second, the Forest Service develops an "allotment management plan" (AMP), which is "a document that specifies the program of action designated to reach a given set of objectives" as to a specific allotment, including "the manner in and extent to which livestock operations will be conducted in order to meet the multiple-use, sustained yield, economic, and other needs and objectives as determined for the lands, involved." Id. § 222.1(b)(2); see also Natural Res. Def. Council, Inc. v. Hodel, 618 F. Supp. 848, 859 (E.D. Cal. 1985) (characterizing an AMP as " 'the penultimate step in the multiple use planning process' and as 'basically land use plans tailored to specific grazing permits' ") (quoting George C. Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 Envtl. L. 1, 23-24 (1983)). The Forest Service incorporates the AMP into the applicable grazing permit unless it has not prepared an AMP or it determines that an AMP is unnecessary, in which case it includes in the permit itself "such terms and conditions as [it] deems appropriate for management of the permitted or leased lands." 43 U.S.C. § 1752(e).

Third, the Forest Service develops and issues annual operating plans (AOPs) or instructions (AOIs). "Whereas the AMP relates the directives of the applicable [F]orest [P]lan to the individual grazing allotment . . . the AOI annually conveys these more long-term directives into instructions to the permittee for annual operations." ONDA, 465 F.3d at 980. "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 . . . ." Id. at 980-81. The Forest Service typically incorporates the AOP or AOI, like an AMP, into the grazing permit, which then "governs the permit holder's grazing operations for the next year." Id. at 980.

II. Factual and Procedural Background

Buckingham resides in Paradise Valley, Nevada, and owns and operates a livestock operation located within the Humboldt-Toiyabe National Forest. In 1983, the Forest Service issued Buckingham a grazing permit for land in the Buttermilk Allotment of the Humboldt-Toiyabe National Forest's Santa Rosa Ranger District. The Forest Service attached a map of the Buttermilk Allotment to the 1983 permit, reflecting the Allotment's boundaries and those of its various pastures. From 1983 through 1988, the Forest Service issued an AOP annually, specifying the pastures Buckingham could use within the Buttermilk Allotment (e.g., Spring City, Buttermilk, Black Ridge, Lye Creek, Buttermilk Meadows), the number of animals permitted in those pastures, and the dates of use for those pastures. The Forest Service expressly incorporated each AOP into Buckingham's applicable grazing permit.

Buckingham renewed his grazing permit in 1989 and 1999. The 1989 permit included a map showing the relevant boundaries for the Buttermilk Allotment, but the 1999 permit did not. Nevertheless, the Forest Service issued an AOP or AOI annually from 1989 through 2004, identifying the specific pastures where Buckingham was authorized to graze his livestock and describing the uses he was authorized to make of those pastures. Some of the AOIs or AOPs, which the Forest Service expressly incorporated into Buckingham's permit, contained maps of the Buttermilk Allotment.

Beginning in January 1998, Buckingham commenced what became a persistent pattern of permit violations. Between January 1998 and June 2004, the Forest Service issued at least seven notices of non-compliance to Buckingham because he had grazed his cattle in rested pastures. In addition to those notices of non-compliance, the Forest Service twice suspended and once cancelled 25 percent of Buckingham's authorized use within the Buttermilk Allotment because he grazed his livestock in rested units and on the Allotment after the authorized "off date."

In June 2004, the Forest Service issued a second partial cancellation of Buckingham's grazing rights under his 1999 grazing permit. The Forest Service informed Buckingham that under the 2004 AOI, he was permitted to graze 1098 cow/calf pairs in the Spring City Unit between May 22 and June 22, and then to graze them in the Buttermilk Unit from June 23 to August 28. Eight days before the authorized entry date, however, the District Ranger discovered 67 cow/calf pairs that belonged to Buckingham grazing in the Buttermilk Unit, and "[t]he forage use in the area indicate[d] these cattle [had] been in [that] unit for quite some time." The District Ranger began his decision by noting Buckingham's "recent and long-term history of non-compliance" and the Forest Service's "initial, but unsuccessful attempts to resolve this situation" with Buckingham. According to the District Ranger, "[i]t [was] apparent to [him] that [Buckingham] [had] little regard and [made] little effort to comply with the terms and conditions of [his] [AOI] and [his] term grazing permit." As a result, the Forest Service cancelled 25 percent of Bucking-ham's authorized use under his grazing permit. The Forest Supervisor and Regional Forester affirmed the District Rang-er's decision.

As a result of the Forest Service's June 2004 cancellation decision, it replaced Buckingham's 1999 permit with a revised permit incorporating the partial cancellation. Under the revised permit, the Forest Service authorized Buckingham to graze only 824 cow/calf pairs, rather than the previously authorized 1098 cow/calf pairs, during the grazing season. As with the 1999 permit, the revised permit did not include a map of the Buttermilk Allotment or its pastures.

In May 2005, the Forest Service issued its AOI for the 2005 grazing season. The 2005 AOI designated the Spring City and Buttermilk Units as rested units and prohibited all grazing on the Buttermilk Meadows Unit.

On July 25, 2005, the Forest Service issued a notice of non-compliance to Buckingham because the District Ranger had observed 42 cow/calf pairs belonging to Buckingham in the Buttermilk Meadows Unit, where grazing was prohibited.

On August 18, 2005, the Forest Service sent Buckingham a decision letter regarding his permit compliance. The letter highlighted the previous notice of non-compliance delivered to Buckingham on July 25, 2005, which had required him to remove all his cattle from the Buttermilk Meadows Unit by July 27, 2005. The letter then informed Buckingham that the District Ranger had confirmed on two separate inspections, one on August 12 and another on August 13, that Bucking-ham still had livestock grazing in the Buttermilk Meadows Unit. As a result, the District Ranger suspended 25 percent of Buckingham's ...


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