Anchustegui v. Dept. of Agriculture, PLAINTIFF-APPELLANT

• Decision Date: 06 April 2001
• Docket Number: PLAINTIFF-APPELLANT,No. 99-35755,DEFENDANTS-APPELLEES,99-35755
• Parties: (9th Cir. 2001) JOHN ANCHUSTEGUI,, v. DEPARTMENT OF AGRICULTURE, NAMED AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE; U.S. FOREST SERVICE, NAMED AS CHIEF OF THE UNITED STATES FOREST SERVICE; REGIONAL FORESTER, OF THE INTERMOUNTAIN REGION OF THE UNITED STATES FOREST SERVICE; BOISE NATIONAL FOREST, NAMED AS FOREST SUPERVISOR FOR THE BOISE NATIONAL FOREST OF THE UNITED STATES FOREST SERVICE; MOUNTAIN HOME RANGER DISTRICT, NAMED AS DISTRICT RANGER FOR THE MOUNTAIN HOME RANGER DISTRICT OF THE UNITED STATES FOREST SERVICE,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1124

257 F.3d 1124 (9th Cir. 2001)

JOHN ANCHUSTEGUI, PLAINTIFF-APPELLANT, v. DEPARTMENT OF AGRICULTURE, NAMED AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE; U.S. FOREST SERVICE, NAMED AS CHIEF OF THE UNITED STATES FOREST SERVICE; REGIONAL FORESTER, OF THE INTERMOUNTAIN REGION OF THE UNITED STATES FOREST SERVICE; BOISE NATIONAL FOREST, NAMED AS FOREST SUPERVISOR FOR THE BOISE NATIONAL FOREST OF THE UNITED STATES FOREST SERVICE; MOUNTAIN HOME

RANGER DISTRICT, NAMED AS DISTRICT RANGER FOR THE MOUNTAIN HOME RANGER DISTRICT OF THE UNITED STATES FOREST SERVICE, DEFENDANTS-APPELLEES.

No. 99-35755

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 6, 2001--Seattle, Washington

Filed July 17, 2001

Joanne P. Rodriguez, Assistant United States Attorney's Office, Boise, Idaho, for the plaintiff-appellant.

Daniel V. Steenson, Jennifer Reid Mahoney and S. Bryce Farris, Ringert Clark Chartered, Boise, Idaho, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho D.C. No. CV-97-0541-S-MHW Mikel H. Williams, Chief Magistrate Judge, Presiding

Before: WOOD,¹TROTT, and PAEZ, Dircuit Judges.

Harlington Wood, Jr., Circuit Judge

After exhausting all administrative remedies, on November 18, 1997, Plaintiff Anchustegui filed a complaint in the district court in Boise, Idaho, against the Secretary of the United States Department of Agriculture ("Secretary of Agriculture"), the Forest Service, the Regional Forester, the Boise National Forest Supervisor, and the Mountain Home District Ranger. Anchustegui sought judicial review of the Forest Service's decision to cancel his permit to graze sheep in the Mountain Home Ranger District, challenging the decision under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 706. Although the court referred the case to mediation, the parties were not able to reach a settlement. The administrative record was filed on September 1, 1998. Both parties agreed to have the case decided by a magistrate judge and both moved for summary judgment. Arguments were heard on February 16, 1999, and the court issued a memorandum decision and order granting summary judgment in favor of the Secretary of Agriculture on May 14, 1999. Judgment was entered on May 21, 1999. We have jurisdiction under 28 U.S.C. §§ 1291, and we reverse the district court's decision.

BACKGROUND

Anchustegui owns and runs a livestock operation. Since 1978, he has held a renewable grazing permit in the House Mountain/Granite Creek allotment of the Mountain Home Ranger District in the Boise National Forest. The 1996 permit allowed Anchustegui to graze 1,000 sheep on the public land allotment between May 10 and September 30.

On May 24, 1993, Anchustegui's permit was renewed through December 31, 2005. However, on March 31, 1995, a letter was sent to Anchustegui by the district ranger, noting that it would be necessary to perform an evaluation as required by the National Environmental Policy Act in order to determine if the management of the rangeland resources was in compliance with the current laws and regulations (i.e., the National Forest Management Act, the Clean Water Act, the Endangered Species Act, etc.). Although there was documentation of instances during the 1995 grazing season when Anchustegui was found not to have been in compliance with the terms and conditions of the permit, a new permit was issued on April 1, 1996 which superseded the May 1993 permit but which retained the December 2005 expiration date.

On May 6, 1996, Anchustegui received a copy of his Annual Operating Plan ("AOP") from the district ranger of the Forest Service Office. The AOP noted problems from the previous year: "The heavy, concentrated use in the riparian areas and several of the upland areas that occurred last year was unacceptable and exceed [sic] the utilization standards in your permit and can not be allowed to continue. You agreed that the use did not need to be that heavy . . . . " The AOP also included mention of the Office's Standard Sheep Grazing Practices (a copy of which Anchustegui had already received), stating that they needed to be followed"or it is a violation of your permit." The permit itself contained specific terms and conditions regarding required management practices.

While grazing his sheep during the 1996 season, Anchustegui received a letter from the district ranger dated September 11, 1996, proposing a 100 percent cancellation of Anchustegui's permit due to certain violations. The letter asserted a number of completed violations of the terms and conditions of the permit and Forest Service regulations: Anchustegui's failure to follow the Forest Office instructions and AOP directives; grazing of livestock outside the area designated in the permit; grazing in the same area more than once; and not moving sheep out of riparian areas immediately after watering. In addition to noting that there had been problems in 1995, the letter recounted that Anchustegui had been made aware of similar violations in 1985 (with a 20 percent suspension of his permit imposed for grazing outside of boundaries), 1989 (with a 30 percent cancellation of his permit for grazing outside of the permitted season), and 1993 (with a 62 percent cancellation of his permit for grazing outside of boundaries and failure to follow Forest Office instructions and AOP directives). The letter instructed Anchustegui that he had until October 10 to show cause in writing as to why his permit should not be cancelled. The letter stated, "Should you fail to provide a timely written response to this proposed permit action, I will implement the permit cancellation as proposed."

Anchustegui responded in a letter dated October 10, 1996, denying the allegations and requesting documentation, stating that, upon receiving the information, he would "provide a detailed reply." According to a letter dated December 12, 1996 from the district ranger to Anchustegui, the Forest Office provided the information requested on November 7, with a cover letter stating Anchustegui had fifteen days after receiving the information to respond. The district ranger also noted that he had sent a letter to Anchustegui on October 23 which stated that Anchustegui had fifteen days after receiving the requested information to respond and that after the fifteen-day period, a decision would be made. The district ranger then advised Anchustegui that, because the ranger had not received a response, he was canceling 100 percent of the permit for the Mountain Home Ranger District based on the reasons outlined in the September 11 letter. In addition, the December letter notified Anchustegui of his right to appeal the cancellation.

Anchustegui submitted his first responsive statement in his appeal on January 20, 1997. Although Anchustegui requested and received leave for oral presentation under 36 CFR §§ 251.97, he was sent notification that "cross examination of District Ranger Tripp and other parties will not be a part of the presentation," explaining that the purpose of the oral presentation was to provide "an additional opportunity for an appellant, and other parties to an appeal, to present their view-points to the Reviewing Officer," under 36 CFR§§ 251.97(a). The district ranger filed a responsive statement on February 18, and on March 17 a hearing took place.

On April 14, 1997, the Forest Supervisor affirmed the decision of the district ranger in a detailed finding, concluding that cancellation of the permit was appropriate. Anchustegui was advised of his right to appeal the supervisor's decision and subsequently filed a second appeal on April 28, 1997. On June 11, 1997, the deputy regional forester affirmed the two previous decisions, again providing a detailed rationale.

Having exhausted his administrative challenges, Anchustegui filed a complaint under the APA with the district court on November 18, 1997. The district court granted summary judgment in favor of the defendants.

STANDARD OF REVIEW

A district court's grant of summary judgment is reviewed de novo. Bagdadi v Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). The evidence must be viewed in the light most favorable to the nonmoving party in determining whether a genuine issue of material fact exists and whether the district court correctly applied the relevant substantive law. Id.

We review the agency decision from the same position as the district court. Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 715 (9th Cir. 1995). We may not substitute our own judgment for that of the agency, Motor Vehicle Mfrs. Ass'n v. State Farm Mut., 463 U.S. 29, 43 (1983), and in general defer to the agency, Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993), given that "an agency's interpretation of its regulations is `of controlling weight unless it is plainly erroneous or inconsistent with the regulation[s].' " Marathon Oil Co. v. United States, 807 F.2d 759, 765 (9th Cir. 1986) (quoting Udall v. Tallman, 380 U.S. 1, 16-17 (1965)). In...