Robbins v. U.S. Bureau of Land Management

• Decision Date: 23 February 2006
• Docket Number: No. 05-8087.,05-8087.
• Citation: 438 F.3d 1074
• Parties: Harvey Frank ROBBINS, Plaintiff-Appellant, v. UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States Department of the Interior; Gale A. Norton, Secretary of the Interior; Kathleen Clarke, Director of the United States Bureau of Land Management; Edward Shepard, Assistant Director, Renewable Resources and Planning, United States Bureau of Land Management; and Robert Bennett, Wyoming State Director, Bureau of Land Management, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

438 F.3d 1074

Harvey Frank ROBBINS, Plaintiff-Appellant, v. UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States Department of the Interior; Gale A. Norton, Secretary of the Interior; Kathleen Clarke, Director of the United States Bureau of Land Management; Edward Shepard, Assistant Director, Renewable Resources and Planning, United States Bureau of Land Management; and Robert Bennett, Wyoming State Director, Bureau of Land Management, Defendants-Appellees.

No. 05-8087.

United States Court of Appeals, Tenth Circuit.

February 23, 2006.

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Marc Ryan Stimpert (Karen Budd-Falen and Erin Sass-Eastman on the briefs), Budd-Falen Law Offices, LLC, Cheyenne, WY, for Plaintiff-Appellant.

Robert J. Lundman, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Matthew J. McKeown, Deputy Assistant Attorney General, Washington, D.C.; Todd S. Aagaard, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; and Kristina Clark, Of Counsel, Office of the Solicitor, Department of the Interior, Washington, D.C.; with him on the brief), for Defendants-Appellees.

Before TACHA, Chief Circuit Judge, ANDERSON and HARTZ,^* Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff Harvey Frank Robbins brought this suit challenging the termination by the Bureau of Land Management ("BLM") of a Settlement Agreement that, if it had remained in effect for two years, would have required the BLM to dismiss sixteen pending administrative actions against Robbins. The district court upheld the BLM's action. Robbins appeals, arguing, as he did below, that, in voiding the Settlement Agreement, the BLM violated his Fifth Amendment procedural due process rights. The BLM responds that Robbins' claim is barred by sovereign immunity based on the relationship between the Administrative Procedure Act, 5 U.S.C. §§ 701-706, and the Tucker Act, 28 U.S.C. § 1491. For the reasons set forth below, we reject the BLM's sovereign immunity argument but affirm the district court's denial of Robbins' due process claim.

BACKGROUND

Robbins is the owner of three ranch properties located in Hot Springs County, Wyoming. These three ranches include areas of private land interspersed with public land administered by the BLM. Robbins has held grazing permits, issued by the BLM, which authorize cattle grazing on some of this public land. Between 1997 and 2003, the BLM took sixteen separate administrative actions against Robbins, ten of which alleged that Robbins had engaged in "trespass" by allowing his cattle to graze on public lands for which he did not hold a permit. Robbins appealed these sixteen actions to the BLM Office of Hearings and Appeals or the Department of Interior Board of Land Appeals.

On January 15, 2003, while all sixteen administrative appeals remained pending, Robbins and the BLM executed a Settlement Agreement for the purpose of "improv[ing] the working relationship between" Robbins and the BLM such that they would handle any future disputes with each other "in good faith and in a spirit of mutual cooperation." Settlement Agreement ("SA") at 1-2, Appellant's App. at 66-67. The Agreement provided that the parties would jointly request stays of the sixteen appeals and would subsequently jointly move to dismiss the appeals with prejudice provided that "a period of 24 consecutive months transpires after the Effective Date of th[e] Agreement without BLM having initiated a formal administrative or judicial proceeding against Robbins alleging willful trespass, the violation of any regulation, law, or BLM decision where range or resource degradation is at issue." SA at 8, id. at 73. It further provided that Robbins and the BLM would engage in an informal dispute resolution ("IDR") process to attempt to resolve any future disputes before pursuing any legal or administrative remedies but that the BLM "may at any time take action necessary to enforce its regulations or protect public land resources, including a decision that requires Robbins to take action that is the subject of" a dispute between Robbins and the BLM. SA at 6, id. at 71. Among other things, the Agreement also contained the following provision:

The Parties stipulate and agree that, as soon as practical after the Effective Date of this Agreement, BLM shall conditionally transfer to Robbins the Owl Creek grazing permit. Before the BLM conditionally transfers this grazing permit to Robbins, Robbins shall first submit to the BLM an appropriate and acceptable grazing or pasture plan detailing Robbins' contemplated uses under this conditional grazing permit. However, if at any time during the 24 months following the conditional transfer of this permit, and after first complying with the [IDR] requirement set forth in Paragraph 3, BLM initiates a formal administrative or judicial proceeding against Robbins alleging willful trespass or the violation of any regulation, law, or BLM decision where range or resource degradation is at issue (regardless of whether such a proceeding directly involves the Owl Creek permit or any other disputed matter between Robbins and the BLM), then without the need for any further consultation, action, or legal recourse, the BLM may cancel the Owl Creek permit . . . . In this event, Robbins shall be free to file an appropriate pleading with the Federal District Court to pursue his legal remedies in the respect to the Owl Creek permit.

SA at 9-10, id. at 74-75. However, following this twenty-four month period, provided that no IDR proceedings have been concluded adversely to Robbins, and provided that Robbins is "otherwise qualified under the then existing law, regulations, and land use plan," Robbins "may apply" for the Owl Creek permit, and the BLM "shall issue the permit to Robbins" free of the conditions previously imposed. SA at 10, id. at 75.

In addition, the Agreement provided that, if the BLM initiated a formal proceeding against Robbins that alleged a "willful trespass or the violation of any regulation, law, or BLM decision where range or resource degradation is at issue" within twenty-four months of the effective date of the Agreement, the BLM, "without the need for any further consultation, action, or legal recourse," may, "in BLM's sole discretion" declare the stays on the administrative appeals to be "of no further force or legal effect." SA at 8, id. at 73. In that event, the Agreement itself would become void.

Beginning in May 2003, four months after the Agreement was executed, the BLM on a number of occasions observed unauthorized grazing by Robbins' cattle on allotments for which Robbins held no permit. The BLM issued one trespass notice to Robbins on December 19, 2003, relating to cattle found in three allotments on December 15 and 16, and a second notice on December 23, 2003, relating to cattle found in two allotments on December 19. The notices indicated that Robbins had allowed unauthorized grazing by his cattle in violation of 43 C.F.R. § 4140.1(b)(1)(iii).¹ Robbins protested the two notices on December 29, 2003, and met with BLM local field office officials on January 12, 2004. At that meeting, Robbins criticized the BLM's practice of issuing notices of trespass for nonwillful violations because, in his view, it was unreasonable to expect cattle to stay on their designated allotments all the time. The BLM officials explained that they based the decision of whether to issue a notice of trespass on the circumstances of each case, and in Robbins' case there had been a number of previous incidents in the past year involving escaped cattle where no notice of trespass had been issued. Robbins expressed his concern that having trespasses on his record jeopardized his ability to keep or renew his grazing permits. Citing this concern, Robbins refused to agree to a settlement under 43 C.F.R. § 4150.3, which would have required designating the noticed trespasses as nonwillful, willful, or repeated willful.² In accord with the IDR provision of the Settlement Agreement, the parties therefore sought review by the BLM Director's Office.

As part of that review, Robbins met with the BLM Deputy State Director on January 21, 2004. The Deputy State Director then issued a written decision indicating that Robbins continued to refuse to settle the noticed trespasses and directing the field office to issue a proposed decision in accordance with 43 C.F.R. § 4160.1. Accordingly, on January 28, 2004, the field office issued a Notice of Proposed Decision indicating that the previously-alleged trespasses constituted nonwillful violations of 43 C.F.R. § 4140.1(b)(1)(iii) and assessing a $150 charge against Robbins to cover the amount of unauthorized forage that the trespassing cattle were calculated to have consumed, based on the number of cattle and number of days they were in trespass. In accord with 43 C.F.R. Subpart 4160, governing BLM administrative actions, the Notice of Proposed Decision explained that the proposed decision would become the final decision unless it was protested within fifteen days and that Robbins could appeal the final decision within thirty days of its receipt. See 43 C.F.R. §§ 4160.1-4160.4.

Two days later, on January 30, 2004, the BLM sent a letter to Robbins "to confirm that the Settlement Agreement of January 15, 2003, between [Robbins] and the [BLM] is now void and of no further effect" because the Agreement's voiding provision "was triggered by the formal administrative proceeding initiated on January 28, 2004." Appellant's App. at 226. The letter further indicated that, "[a]t this time, the BLM is considering its options regarding the [sixteen stayed administrative] proceedings listed in" the Agreement. Id.

Robbins then brought suit in federal district court, challenging, under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and the Fifth Amendment's Due...