KENNETH R. BUCKINGHAM 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
No. 09-15893
United States Court of Appeals, Ninth Circuit
April 29, 2010
6345
Milan D. Smith, Jr., Circuit Judge
D.C. Nо. 3:07-cv-00073-BES-RAM. FOR PUBLICATION. Argued and Submitted March 1, 2010—Portland, Oregon. Appeal from the United States District Court for the District of Nevada, Brian E. Sandoval, District Judge, Presiding.
Argued and Submitted March 1, 2010—Portland, Oregon
Filed April 29, 2010
Before: Richard A. Paez, Richard C. Tallman, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Therese A. Ure, Schroeder Law Offices, P.C., Portland, Oregon, John E. Marvel, Marvel & Kump, Ltd., Elko, Nevada, and Wm. Alan Schroeder, Schroeder & Lezamiz Law Offices, LLP, Boise, Idaho, for the plaintiff-appellant.
Daniel G. Bogden, United States Attorney, and Roger W. Wenthe, Assistant United States Attorney, Las Vegas, Nevada, for the defendants-appellees.
MILAN D. SMITH, JR., Circuit Judge:
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). Buckingham sought judicial review, pursuant to the
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).
The Forest Service authorizes grazing within the National Forest System on “allotments” pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA),
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
Second, the Forest Service develops an “allotment management plan” (AMP), which is “a document that specifies the
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 оr 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 Ser-
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-сompliance 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
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
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 Buckingham still had livestock grazing in the Buttermilk Meadows Unit. As a result, the District Ranger suspended 25 percent of Buckingham‘s authorized use under the 2005 permit for three years. It also instructed him to remove all his livestock from the Buttermilk Meadows Unit that same day.
On September 9, 2005, the Forest Service issued another notice of non-compliance to Buckingham. Despite the July 25 and August 18 notices, and the related suspension, the Forest Service confirmed that Buckingham‘s cattle were still grazing in the Buttermilk Meadows Unit on August 23 and August 25, 2005. Once again, the notice required Buckingham to remove his cattle immediately. The Forest Service reminded Buckingham that he had “a repeat and ongoing problem” with compliance and instructed him to undertake appropriate actions or management to prevent future violations.
Buckingham failed to heed the Forest Service‘s warnings. The Forest Service confirmed that Buckingham‘s cattle were still grazing in unauthorized areas of the Buttermilk Allotment, including the Buttermilk Meadows Unit, on September 14, 18, 19, 20, 22, 26, 28, 29, and November 10, 2005. Consequently, on November 18, 2005, the Forest Service issued a decision cancelling Buckingham‘s grazing permit in its entirety. In addition to listing Buckingham‘s recent permit violations, the letter recounted his long history of non-compliance, noting that from 1998 to 2005, the Forest Service
The Forest Supervisor and the Regional Forester affirmed the District Ranger‘s decision. The Regional Forester‘s decision constituted a final agency action.
Buckingham promptly filed an action in the U.S. District Court for the District of Nevada seeking judicial review of the Forest Service‘s actions. Ultimately, the parties filed cross-motions for summary judgment. The district court ruled in favor of the Forest Service, holding, inter alia, that: (1) Buckingham failed to exhaust his administrative remedies as to his claim that the 2005 permit was unenforceable for its failure to contain proper maps and boundary descriptions; (2) the agency did not violate Buckingham‘s procedural due process rights by failing to provide him with a pre- or post-deprivation hearing; (3) the agency complied with the requirements of
STANDARD OF REVIEW
We review de novo the district court‘s summary judgment decision upholding the agency decision. Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998). Under the APA, a court may set aside an agency action if the court determines that the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
We review de novo questions of law, including due process claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
DISCUSSION
I. Exhaustion of Administrative Remedies
Buckingham argues that the Forest Service‘s cancellation decision was arbitrary and capricious because neither the 2005 permit nor the 2005 AOIs included a description or map defining the location and boundaries of the Buttermilk Allotment‘s pastures where he had grazing and maintenance obligations. The district court declined to reach the merits of Buckingham‘s argument, holding that he had failed to exhaust his administrative remedies on this claim. We affirm the district court‘s decision that Buckingham failed to exhaust his administrative remedies by failing to properly raise this issue before the Forest Service.
[1] The APA requires plaintiffs to exhaust their administrative remedies before bringing suit in federal court.
The purpose of the exhaustion doctrine is to allow the administrative agency in question to exercise its expertise over the subject matter and to permit the agency an opportunity to correct any mistakes that may have occurred during the proceeding, thus avoiding unnecessary or premature judicial intervention into the administrative process.
United Farm Workers v. Ariz. Agric. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982). The exhaustion requirement applies to claims brought before the Forest Service.
There is no bright-line test to determine whether a party has properly exhausted a claim to the Forest Service; the determination must be made on a case-by-case basis. Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002). Although “claimants who bring administrative appeals may try to resolve their difficulties by alerting the decision maker to the problem in general terms, rather than using precise legal formulations,” claimants are still obligated to raise their problem “with sufficient clarity to allow the decision maker to understand and rule on the issue raised.” Id. (emphasis added).
Buckingham contends that the district court erred by relying only upon Idaho Sporting Congress in its exhaustion ruling. He asserts that the district court failed to account for our decision in Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002), which he asserts “refined and explained” the standard set out in Idaho Sporting Congress. Contrary to Buckingham‘s position, Native Ecosystems Council and Idaho Sporting Congress, which were handed down by the same panel on the same day, did not rely upon divergent exhaustion standards or doctrines. Any variation in the outcome of the exhaustion issues involved in those two decisions turned on the facts unique to those cases, not different legal standards.
[3] Therefore, this is not a case where Buckingham has framed his case “in non-legal terms rather than precise legal formulations.” Id. at 900. Rather, Buckingham simply failed to address this argument to the Forest Service “with sufficient clarity to allow the [agency] to understand and rule on the issue raised.” Idaho Sporting Congress, 305 F.3d at 965. Accordingly, the district court did not err in holding that Buckingham failed to exhaust this argument to the Forest Service.
II. Procedural Due Process
[4] Buckingham next contends that the Forest Service violated his Fifth Amendment right to procedural due process. The Due Process Clause of the Fifth Amendment forbids the federal government from depriving persons of “life, liberty, or property, without due process of law.”
Here, the district court held that Buckingham had a protected property interest in the duration of his 2005 grazing permit. The Forest Service contests this position in a letter to the court dated March 12, 2010, arguing that “no such property right exists.” Because we hold that the Forest Service complied with the requirements of due process, whether or not Buckingham possessed a protected property interest in his grazing permit, we do not reach the question of the exact nature of that property interest here.
To determine whether the Forest Service‘s administrative procedures leading up to the terminatiоn of Buckingham‘s grazing permit afforded him due process, we must balance: (1) the private interest that will be affected by the action, (2) the risk of an erroneous deprivation of that interest through the procedures used and the value of additional or alternative safeguards, and (3) the government‘s interest, including the additional costs and administrative burdens that additional procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
[5] Whatever the exact nature of Buckingham‘s property interest in the disputed grazing permit, it is clear that Buckingham‘s livelihood depends, at least in part, upon the right to graze his livestock on national forest lands. The government also has a strong interest in managing livestock permitted to graze in the national forests in order to preserve that valuable land and its resources. Cattle control is a vital aspect of proteсting that governmental interest. As stated by the Forest Supervisor in his decision affirming the District Ranger‘s June 2004 decision,
Control of cattle is the most important responsibility of any permittee. All grazing systems and resource
management plans and requirements are based on the assumption that a certain permitted number of cattle are located in a certain grazing unit for a particular period of time. This is particularly true in rest units. The resource benefits of a seasons [sic] rest are essentially eliminated by unauthorized grazing.
With the substantial interests of both parties in mind, we next consider “the fairness and reliability of the existing . . . procedures, and the probable value, if any, of additional procedural safeguards.” Mathews, 424 U.S. at 343. In doing so, we look to the process given Buckingham in this case, as well as the process generally given someone whose grazing permit is cancelled, and evaluate the likelihood of the Forest Service making a mistake. See Humphries v. County of Los Angeles, 554 F.3d 1170, 1194 (9th Cir. 2009); Mathews, 424 U.S. at 344 (“[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.“). Buckingham argues that the pre- and post-deprivation procedures afforded him by the Forest Service were insufficient. He contends that “[a]n evidentiary hearing, or at minimum, the chance to confront or cross examine witnesses, would have helped assess the[] many ‘comparative faults’ and their relationship on the allotment and their impact upon Buckingham‘s ability (or lack thereof) to comply.”
[6] We are not persuaded. “The base requirement of the Due Process Clause is that a person deprived оf property be given an opportunity to be heard ‘at a meaningful time and in a meaningful manner.‘” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 984 (9th Cir. 1998) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Nevertheless, procedural due process does not require that the notice and opportunity to be heard occur before the deprivation. Parratt v. Taylor, 451 U.S. 527, 540 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). It can take place through a combination of pre- and post-
[7] Before the Forest Service finally cancelled his grazing permit, it provided Buckingham with ample procedures, pre- and post-deprivation, to ensure that he could present his side of the story. Prior to the Nоvember 2005 cancellation decision, the Forest Service notified Buckingham in writing of his permit violations on several occasions. It issued notices of
In addition, following the cancellation, the Forest Service provided Buckingham with two levels of administrative review of its decision. Buckingham was entitled to appeal, and did appeal, to the Forest Supervisor in accordance with
[8] Buckingham аrgues that procedures such as an evidentiary hearing and cross-examination were necessary here because of the many disputed facts involved in his case. Nevertheless, Buckingham has failed to persuasively explain why he was unable to resolve those factual issues through the ample process he was given. The record shows that Buckingham, over the course of many years, was able to raise, and did raise, the same factual disputes before the Forest Service that
The Forest Supervisor further noted that “similar issues had occurred repeatedly over nearly 30 years” and “found the record to be remarkable in the number of letters about this issue since 1986.” In the appeal of the November 18, 2005, decision, both the Forest Supervisor and Regional Forester addressed each of Buckingham‘s excuses. For example, as to Buckingham‘s explanation that a neighboring permittee failed to maintain her portion of the fence, which allegedly permitted his cattle to drift into the unauthorized pasture, the Regional Forester noted that the neighboring pеrmittee had repaired that fence but that Buckingham‘s non-compliance persisted. Therefore, it is apparent from the record that Buckingham had the opportunity to present, and did present, his case as to why he was unable to comply with the permit terms, that the adjudicator was able to consider, and did consider, the evidence presented by both Buckingham and the Forest Service, resulting in the adjudicator making an informed decision.
[9] In sum, by the time the administrative appeal process concluded, the Forest Service had given Buckingham sufficient pre- and post-deprivation procedures to satisfy any due process concerns. Prior to the cancellation of his permit, the Forest Service personnel notified Buckingham of the charges against him, gave him ample opportunity to respond, and participated in telephone and face-to-face conversations with Buckingham. After the Forest Service cancelled his permit, Buckingham, represented at all times by counsel, was permit-
III. Notice Requirements under the APA
Buckingham also argues that the Forest Service failed to give him notice and an opportunity to demonstrate or achieve compliance with his permit, in accordance with the APA,
Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency proceedings therefor, the licensee has been given-
(1) notice by the agency in writing of the facts or conduct which may warrant the action; and
(2) opportunity to demonstrate or achieve compliance with all lawful requirements.
The parties agree that Buckingham‘s grazing permit qualifies as a license for purposes of § 558(c). The disрute here is whether the Forest Service complied with § 558(c) by giving Buckingham adequate notice and adequate opportunities to comply with his permit.
[10] “Congress enacted . . . [§ 558(c)] to afford licensees an opportunity to comply with the requirements of a license before termination.” Air N. Am. v. Dep‘t of Transp., 937 F.2d 1427, 1438 (9th Cir. 1991) (internal quotation marks omitted) (alteration in original). “This policy suggests that the key consideration is whether the written notice of a regulation‘s requirements is sufficient to allow the licensee an opportunity to comply with the regulation.” Id. “Both the policies underlying section 558(c) and Ninth Circuit authority suggest that notice is sufficient if the notice warns the licensee of the parameters of acceptable conduct and thereby prevents unfair surprise.” Id. The Forest Service cancelled Buckingham‘s “license” on November 18, 2005. Thus, thе question is whether the Forest Service gave Buckingham sufficient notice, prior to that date, of his “transgressions” and an adequate opportunity to correct them. See id. at 1437.
[11] Before November 18, the Forest Service sent Buckingham three letters of non-compliance: one on July 25, one on August 18, and one on September 9. All three letters pinpointed the section of the disputed grazing permit that he violated and notified him of the factual basis for the charged violations. Thus, the Forest Service warned Buckingham of his transgressions three times before cancelling his permit.
Contrary to Buckingham‘s contention, his situation is not analogous to that at issue in Anchustegui v. Department of Agriculture, 257 F.3d 1124 (9th Cir. 2001). In Anchustegui, the agency issued a letter to the permittee, which recited a number of permit violations by the permittee, and proposed a 100-percent cancellation of the permit unless the permitee could show cause why the cancellation was unwarranted. Id. at 1126-27. In that case, the Forest Service issued a single letter to serve as both a notice of non-compliance and a decision letter regarding the same non-compliance. Under such circumstances, the agency did not give the permittee a fair opportunity to show that he had complied with the terms of his grazing permit. Id. at 1129.
Here, the July 25, 2005, letter did not announce any decision by the Forest Service. It merely informed Buckingham that his livestock were discovered grazing in a restricted pasture and instructed him that he needed to comply with his permit. After Buckingham failed to comply with the instructions in the July 25 letter, the Forest Service next issued its August 18, 2005, letter, notifying him of its decision to suspend 25 percent of his authorized use. Buckingham contends that the August 18 letter gave him no opportunity to correct his permit violations. To the contrary, the Forest Service provided that notice and opportunity with its July 25 letter, which expressly required Buckingham to remove all his livestock from the unauthorized pastures by July 27, 2005. On August 12 and 13, 2005, the Forest Service documented Buckingham‘s livestock still grazing in unauthorized pastures. Thus, the Forest Service predicated its August decision upon Buckingham‘s failure to do what it instructed him to do on July 25, 2005.2
If Buckingham‘s approach were adopted, it is difficult to see how the Forest Service, after documenting one permit violation, would ever be able to actually render an adverse decision related to a grazing permit, because each new violation would restart the clock for the permittee to comply. The purpose оf § 558(c) is to give permittees a “second chance,” not a third, fourth, and fifth chance. Air N. Am., 937 F.2d at 1438. Buckingham would have permittees and the Forest Service engage in a bottomless vortex of red tape, consisting of “Forest Service issuance of [notice of non-compliance], permittee corrective action, Forest Service verification, followed by another violation of the same term or condition by the permittee, and so forth.” Forest Service Handbook 2209.13, Grazing Permit Administration Handbook, Intermountain Region (Region 4) [hereinafter FSH 2209.13], Section 16.36 (2009), available at http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?2209.13 (follow “id_2209.13-2009-1doc” hyperlink) (last visited Apr. 19, 2010) (“While [permittees] may be entitled to a ‘second chance,’ permittees are not entitled to unlimited chances to correct repeated incidents of noncompliance regarding the same or a closely related permit terms or conditions.“).
[12] Buckingham presents the identical argument in attacking the November 18, 2005, letter. He argues it served as a
IV. Prior Violations
In its November 18, 2005, cancellation decision, the Forest Service recounted Buckingham‘s history of non-compliance with his grazing permits, occurring between 1998 and 2004, in addition to his 2005 violations. Buckingham argues that the Forest Service acted arbitrarily and capriciously by considering any violations that occurred before his 2005 grazing permit issued. According to Buckingham, “[i]ssues of compliance within any preceding permit period cannot form the bаsis for non-compliance under the current permit.”
[13] Since at least as early as 1897, when Congress enacted the Forest Service Organic Administration Act, the Forest Service has been charged with preserving our nation‘s priceless woodlands from destruction. See
[14] For years, the Forest Service exercised exceptional restraint in dealing with Buckingham. After his repeated failures to comply with the terms of his grazing permit, despite numerous warnings and sanctions, the Forest Service determined that “enough was enough” and that complete termination of his grazing rights was appropriate. The Forest Service recognizes that permit cancellations are serious sanctions. As a result, it “[a]pproach[es] permit cancellation with discretion.” Forest Service Handbook 2209.13, Grazing Permit Administration Handbook [hereinafter FSH 2209.13 (1992)], Section 16.2 (1992), available at http://www.fs.fed.us/cgi-bin/Directives/get_dirs/fsh?2209.13 (follow “2209.13,16-19.rtf” hyperlink) (last visited Apr. 19, 2010). But its directives acknowledge that prior offenses may be relevant to a cancellation determination. See id. (“Total cancellation is seldom justified in first offense cases unless violation is flagrant and willful.” (emphasis added)). Cancellation for an isolated offense would be inappropriate in most cases because “[n]on-compliance with the term grazing permit terms and conditions are generally cumulative.” FSH 2209.13, Section 16.4. As a result, “any and all recent prior occurrences of non-compliance with permit terms and conditions should be considered in determining” repeat offenses, including offenses from previous grazing seasons. Id. Although some of Buckingham‘s cited violations stretched back to 1998, these were not isolated events, but the beginning of a lengthy history of substantially identical violations, which were still occurring in the 2005 grazing season. Buckingham was no first-time offender. As a result, the Forest Service possessed the authority to deem complete cancellation to be the appropriate sanction, and its ultimate decision to do so was not arbitrary or
Buckingham responds with a citation to
[15] Buckingham‘s response is creative but unpersuasive. In May 2005, the Forest Sеrvice did not issue him a “new permit.” Rather, it issued him a revised permit, valid for the remaining three years of the ten-year term of his 1999 permit,3 reflecting the reduced usage he was entitled to as a result of his failure to comply with the terms of his 1999 permit. Further, the Forest Service obviously did not issue him his 2005 permit based upon a decision that he had fully complied with the terms of his prior permit; the 2005 permit was issued because Buckingham had violated the terms of the 1999 permit. Buckingham cannot reasonably argue that the Forest Service‘s issuance of the 2005 permit was a tacit approval of his compliance with his 1999 permit.
CONCLUSION
We hold that the Forest Service did not act arbitrarily or capriciously in deciding to cancel Buckingham‘s grazing permit, and that in doing so, it provided Buckingham the procedures he was due under both the Fifth Amendment and the APA.
AFFIRMED.