United States of America v. Smith

Motion for Summary Judgment .

W.D. Mo.May 12, 2017

BILLY J. WILLIAMS, OSB #901366 United States Attomey District of Oregon NEIL J. EVANS, OSB #96551 neil.evans@usdoi.gov Assistant United States Attomey United States Attomey's Office District of Oregon 1000 S.W. Third Ave., Suile 600 Portland, Ore gon 97 20 4-2902 Telephone: (503) 727- 1000 Facsimile: (503)127-1117 Attomeys for Plaintiff, United States of America UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION UNITED STATES OF AMERICA, Plaintiff, Case No. 2:16-CV-1493 SU MOTION AND MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT TYLER SMITH, Defendant. I. Motion The United States (U.S.) hereby moves for summary judgment on the Complaint for Trespass. (Dkt. No. I .). Pursuant to Local Rule 7.1, AUSA Evans has confened with Defendant Smith and he opposes this motion for summary judgrnent. Page I - United States Memorandum in Support of Summary Judgment United States of America v. Tyler Smith; Case No. 2:16-cv-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 1 of 22 II. Memorandum The complaint of the U.S. alleges that Defendant Tyler Smith (Smith) is trespassing on National Forest System land located in Wallowa County in the Wallowa-Whitman National Forest. Regarding this claim, the facts are largely uncontested. ln summary, the Forest Service never authorized, nor received a request for authorization from, Defendant Smith regarding cattle grazing on National Forest System land identified in the complaint. The Forest Service and the United States Attomey's Office notified Defendant Smith on multiple occasions that his cattle are trespassing, yet Defendant Smith continued to allow his cattle to graze on National Forest System land. Page | 2 United States Memorandum in Support of Summary Judgment United States of Americo v. Tyler Smith:. Case No. 2:16-CV-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 2 of 22 MEMORANDUM IN SUPPORT OF THE UNITED STATES' MOTION FOR SUMMARYJUDGMENT The intentional trespass claim arises from Defendant Smith's failure to remove his cattle fiom National Forest System land. There is no dispute that the Log Creek and Cayuse allotments are Forest Service land; each trespass incident involved Defendant Smith's cattle; Defendant Smith has no authorization or permit to allow his cattle to graze on the federal land; Defendant Smith knew his cattle were grazing on National Forest Service lands. Summary Judgment Summary judgment is proper if the record before the Court shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986); Rosenbaum v. lflashoe County, 663 F.3d 1071, 1075 (9th Cir. 2011). The party seeking summary judgment bears the initial responsibility of showing an absence ofan issue of material fact. Celotex Corp. v. Catrett, 4'.77 U.5.317,323. A fact is "material" only if a dispute over it might affect the outcome of the suit under the goveming substantive law. Anderson v. Liberty Lobby, Inc.,47'1 U.5.242,248 (1986). A dispute over a material fact is "genuine" only if the evidence is such that a finder offact could reasonably resolve the dispute in favor of either party. Id.; ll'ebb v. Cardiothoracic Surgery Assocs. of N. Tex., PA., 139 F.3d 532, 536 (5th Cir. 1998) ('[i]f the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial") (intemal citations omitted). Thus, "[a] 'scintilla of evidence,' or evidence that is'merely colorable' or 'not significantly probative,' is not sufficient to present a genuine issue as to a material fact." United Page | 3 United States Memorandum in Support of Sum mary Judgment united Stotes of America v. Tyler Smith: Case No. 2:16-CV-1493 5U Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 3 of 22 Steelworlcs of Am. v. Phelps Dodge Corp.,865 F.2d 1539, 1542 (9th Cir 1989) (quoting Anderson, 477 U.S. at 249-50). Mere "conclusory allegations, standing alone, are insufficient to prevent summary judgment;' Sloman v. Tradlock,2l F.3d1462,1474 (9th Cir. 1994). A. Trespass A person is liable for trespass "if he intentionally: (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove." Restatement (Second) ofTorts $ 158. In Oregon, a trespass may arise from an intrusion upon another party's land, which is either intentional, negligent, or the result of ultra-hazardous conduct. Martin v. Union Pacific Railroad, 256 Or. 563,474 P.2d739 (1970). At the time ofthese incidents, Defendant Smith had not requested authorization from the Forest Service to graze catlle on federal land. Decl. Mork at 3. Defendant Smith was made aware of the regulations requiring authoization, but failed to stop allowing his cattle to graze on federal land in the Wallowa-Whibran National Forest. Decl. Mork at 3. The particular land is identified as the Log Creek Allotment and the Caluse Allotment. Decl. Mork at 3. Defendant Smith's duty to remove his cattle from federal lands arises from regulations, which provide that Defendant Smith is prohibited from: (a) Placing or allowing unauthorized livestock to enter or be in the National Forest System or other lands under Forest Service Control. (b) Not removing unauthorized livestock from the National Forest System or other lands under Forest Service control when requested by a forest officer. (c) Failing to reclose any gate or other entry. Page | 4 United States Memorandum in Support of Summary ludgment United Stotes of Americo v. Tyler Smith'. Case No. 2:16-CV-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 4 of 22 36 C.F.R. $$ 261.7(a), (b), (c). Defendant Smith's liability for trespass for each incident in the complaint arises because the trespass occurred in the Wallowa-Whitman National Forest, which is National Forest System [and. See Map - Wallowa-Whitman Forest. Decl. Mork Exhibit A. Further, each paragraph below, numbered as in the complaint, further prove that the cattle observed by Forest Service officials belong to Defendant Smith: 12. On or about June 24,2015, Forest Service employee, Shawn Mork, identified and photographed at least twelve of Defendant Smith's cattle grazing within National Forest System land. Decl. Mork at 4; Mork Exhibit B; Certificate of Cattle Brand Recordation No. 566700. Mork Exhibits C, D. 13. On or about March22,2016, Forest Service employees, Jerry Hustafa and Alan Miller, identified and photographed at least six ofDefendant Smith's cattle gazing within National Forest System land. Decl. Hustafa at 3. Hustafa Exhibit A. 14. On or about March 30,2016, Forest Service employee, Shawn Mork, identified and photographed ten of Defendant Smith's cattle grazing on National Forest System land. Decl. Mork at 5. Mork Exhibit F. 15. On or about June 2,2016, Forest Service employee, Jane Rushane, observed sixteen of Defendant Smith's cattle grazing on National Forest System land. Decl. Rushane at 5. Rushane Exhibit C. 16. On or about June 13, 2016, Forest Service employee, Jane Rushane, observed three of Defendant Smith's cattle grazing on National Forest System land. Decl. Rushane at 6; Rushane Exhibit D. For each of these trespasses alleged in the complaint (Dkt. No. l), Defendant Smith had knowledge ofthe trespassing, admitting that he spoke to Forest Service officials who told him of Page | 5 United States Memorandum in Support of Summary Judgment united Stotes of Americo v. Tyler Smith'. Case No. 2:16-CV-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 5 of 22 the trespassing. Defendant Smith's Answer, (Dkt. No.9), at 14. Defendant Smith admits he received letters on Apil 24,2016 and April 28, 2016 fiom the United States Attomey's office informing him of the trespassing. Id. at 15. Defendant Smith had a phone conversation on April 2'1 ,2016 withForest Service official Shawn Mork informing Defendant that he had no entitlements to the land, and that his cattle were in trespass. Decl. Mork at 6. There is no dispute that even after repeated wamings by Forest Service officials, Defendant Smith continued to allow his cattle to gtaze on federal land. Forest Service officials, including on June 2,2016 and June 13,2016,have observed this grazing subsequent to the wamings. Complaint, (DktNo.1), at 15-16; Decl. Rushane at 5-5. In summary, at no time relevant to the Complaint, has Smith been authorized, through permit or any other form of authorization, to enter or use the subject lands for grazing purposes. The Forest Service has jurisdiction to grant or deny grazing authorization pursuant to 36 C.F.R. $ 222.50(h). Forest Service employees began documenting Smiths trespassing in mid-2015. Forest Service employees observed and photographed Smith's cattle trespassing on May 26, June 24 and August 25, 2015. A1l photographs show cattle bearing brands belonging to Smith. This unauthorized grazing continued, and was further observed and documented on or about the 2016 dates of March 22, March 30, June 2, and June 13. Decl. Hustafa at 3; Hustafa Exhibit A; Decl. Mork at 5; Mork Exhibit F; Decl. Rushane at 5-6, Rushane Exhibits C, D. Each of these documented incidents of unauthorized grazing was intentional. Smith was notified by Forest Service officials of the trespassing. Assistant U.S. Attomey, Neil J. Evans also sent Smith letters of notification of trespassing on federal lands on April 14, 2016 and April 28, 2016. Memo Exhibits A & B. Defendant denied permitting his cattle to graze on federal land in a response letter dated PaBe | 6 United States Memorandum in Support of Summary Judgment United Stotes of Americo v. Tyler Smith'. Case No. 2:16-CV-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 6 of 22 May 4, 2016. However, the Forest Service documented multiple incidents of Smith's cattle trespassing after he had denied such trespass. There is no genuine issue of material fact that Smith allowed his cattle to graze on federal land, despite having been made aware, on multiple occasions that he was in trespass. As a result, summary judgment should be granted in favor of the Forest Service on the trespass claims. III. Conclusion This Court should grant summary judgment in favor of the Plaintiff. DATED this l2thday of May 2017. Respectfu lly submitted, BILLY J. WILLIAMS United States Attorney District of Oregon /s/ Neil J. Evans NEIL J. EVANS Assistant U.S. Attomey Page | 7 United States Memorandum in Support of Summary Judgment United Stotes of Americo v. Tyler Smith'. Case No. 2:16-CV-1493 SU Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 7 of 22 U.S. Department of Justice Billy J. Williams United States Attorney District of Aegon 1000 SW Third Avenue, Suite 600 P ortland, OR 972 04-2902 (s03) 727-1000 Fm (503) 727-1 117 Aprilt4,2016 Tyler J. Smith 78703 knnaha Highway Imnaha, OR 97842 Re: Grazing Cattle & Public Lands Dear Messrs. Smith: Evidence has been presented to the United States Attomey's Office that since late March tkough mid-April of 2016 you have allowed cattle to gruze on land managed by the U.S. Forest Service without authorization. Specifically, we have information that you have cattle near Fence and Packsaddle Creeks in the Wallowa-Whihan National Forest. The U.S. Attomey's Offrce is responsible for enforcing tle regulations and laws applicable to authorized and unauthorize d grazlr;lg of cattle on public lands. This includes the prohibition on placing or allowing livestock to enter or be in the National Forest System and protection of national forests. 36 C.F.R. s261.17 & 16 U.S. C. S 551, respectively (Class B misdemeanors). The U.S. Aftomey's Office also has the ability to seek civil remedies such as injunctiom, either separately or in concert with any criminal prosecution. At this time, our office is preparing a civil complaint for trespass and damages. The complaint will name the respomible parties aad seek a court order for the removal of the cattle. Please contact me or ask your lawyer to contact me at neil.evars@usdoi.sov or (503) 727-1053 by Apm22,2016. Sincerely, BILLYJ. WILLIAMS United States Attomey hr NEIL J. EVANS Assistant United States Attomey MEMO EXHIBITA Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 8 of 22 U.S. DepartEent Billy J. Willionu (, ,r"ti"" United States Attorney District of Oregon 1000 W Ihird Avenue, Suite 600 P ortland, OR 972 04-2902 (s03) 727-1000 Fax (503) 727-17li Apil28,2016 Tyler Smith 78703 Imnaha Hwy. lmhaha Orcgon 97842 Re: Grazing Cattle & Public Lands Dear Mr. Smith: Thank you for speaking with me early last week and meeting with Forest Service representatives earlier this week. I understand that during the meeting with the Forest Service staff you presented the enclosed 'Quitclaim Deed" and claimed this gave you the right to graze cattle on the Log Creek Grazing Allotrnent. The deed is dated February 22,2016 and siped by Michael Smith as a "member" of the Gazelle Land & Timber L.L.C. As you must be aware, the Ninth Circuit Court of Appeals rejected the argument by Gazelle Land & Timber LLC that the Forest Service improperly cancelled the Log Creek Grazing A-llotment. Opinion Attached. Yow grandfather, Michael Smith, had nothing to quitclaim to you and the deed does not give you the right to graze cattle on the Log Creek Allotment. To be clear, the Log Creek Allotrnent is not currently available for grazing and anyone grazing cattle on that land is trespassing. As a result ofyour actions, both grazing cattle on public lands and presentirg a worthless document to Forest Service law enforcemen! a civil law suit seekhg a permaneDt injunction is being drafted. You may want to consult with an attomey about this matter. Sincerely, BILLY J, WILLIAMS U States Attomey VANS Assistant United States Attomey J MEMO EXHIBIT B PAGE 1 OF 14 Enclosure Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 9 of 22 ffikhB8 After recording please retrm !o, and until a change is requestod, send all tax statemeats to the following address: TylerSmi6 78703 Imnrna Hwy I'nnrtao Or 97842 c 'D0C*: O0Oz Parcel ID: N/A RGPTI 85884 4|2L/2OLE lrOA Pl{ REFUIID: QUITCI"AIMDEED By rr{rs eurrcr-ATMDEED, "*""*d'Hf,;;" "iff'o, "r*:u',Gazelle Laud & Timbet L.L.C. P.O. Box 3I0 Cauyon City, Or 97820 releases and quitclaims to the grantee, IlerSmi6 78703 Imnaha Hwy lmtaha,Ot97U2 for the true consideration of $1 and other considq'ations all the grantpp's righg title, iqterest in and to the following desctibed parcel ofland in lr/ a ll g V t\ County, Oregon, Iegally describod as: The ReaI Property within fte peviously knowu Iog Creek Grazing Allomeot. AII herbaceous material, Livesiock watcr rightsr iEprovements, higlways, stoc.k driveways, biways as well as auy righb associated with operating and maneging a Grazing allotuielrl MEMO EXHIBIT B PAGE 2 OF 14 STAIEOF@MGON } COIJNTYOFWAIIOWA } I certit ttat thie in8f@eut was receivbil ard recorded in the book of recodr of t&id comty. ,1:ir 06 il i o@ 50 , 2016 , the grmtor, Coomonly known as: prwiouslg The Log Cleek Grazing Allotment BEFORE SIGNING OR ACCEPTING TIIIS INSIRI'MENT, TIIE PERSON TRANSFERRING PEE TITLE SHOIJLD INQI'IRE ABOUT TIIE PERSO}f S RIGI{TS, IF ANY, UNDERORS 195.300, 195301 AND 195.305 TO 195.336AND SECTIONS 5 TO 1r, C}IAPTER 424, OREGON LAWS 2007 , SECTIONS 2 TO 9 AND 1 Z CTIAPIER 855, OREGON LAWS 2009, AND SECTIONS 2 TO 7, CIIAPTER 8, OREGON I"A.WS 2OiO. IHIS INSTRUMENT DOES NOT AIiOW USB OF TTIE PROPERTY DBSCRIBED IN TIIIS INSTRIJMENT IN VIOLC.TION OF APPLICABI.E LAND USE I.A.WS AI.{D REGIJI-ATIONS. BEFORE SIGNING OR ACCETflNC TIIIS INSTRIJMENI, THE PERSON ACQUIRINGFEE IIILE TO TIIE pROpERTy SHOULD CITECK WTIII THE DE dr.coo U!i6d CeYcyeoia8 BIeEb :ii. Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 10 of 22 ffihhBS' APPROPRI,ATE CITY OR COUNTY PLANNING DEPARTMENT TO VER,IFY T}IAT TIIE IJMT OF LANDBEINGTRANSFB.RED IS AI,AWFTII;LYESTABLISHED LOT OR PARCEL, AS DEFINED IN ORS 92.OIO OR 215.010, TO VERIFT TIIE APPRO\IED USES oF THE LOT ORPARCEL, TO DETERI\.{r}E.4NYLrMrrS ONLAWST.JTTS AGATNST FARMING ORFORESTPRACTICBS, AS DEF.IhIED INORS3Og3O,AND TO INQT]IRE ABOUT TI{E RTGHTS OF NEIGIIBORING PROPERTY OWNERS, IF AI\TY, UNDER ORS re5.300, 195.301 AND 195.30s TO 195.336 AND SECTIONS 5 T0 11, CTIAPTER 424, oREGON LAWS 2007, SECTTONS 2 TO 9 AND r 7, CITAPTER 8ss, ORECON LAWS 2009, AND SECTIONS 2 TO 7, CIIAPTER E, OREGONLAWS 2010. In wihess whereo{ the grantor has siped md sealed these presents on the day aad year first above writen- /Y,r',/,rtn t S;/ f\ len Print name Print lEDe Capacrty Capac@ Sighature Siglature Print np'ne Priat name Capdcity Crpaatq Construe all terms with the qpropriae gen&r od qwrtity requireil by the sense ofthis deed STATE OF COUNTYOF This record was achowledged before me oa this 3 ) day of FetNuc*tv 20J_b_W Public Print name My commrlssion e lpires: )or MEMO EXHIBIT B PAGE 3 OF 14 JWOODWOFTH PUBUOOHEOot{ PAMEI.A NOTAfiT @MMSSION NO. 92A2t7 2017o@lf,s DEt tH8li t 1 Dcc&caa l}ibrm Corvcyaaciog Blaob '; Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 11 of 22 Eflih$'60 Log Creek Allotment: 48 Portions of Sections 27, 31,32,33 andt4 @eiug portions of Tzix Ints rl00 aud all of TLl600) 3 en allo Portion of Section 36 @eing portions of Tax l.ot 100 and all of Ta:< Lt 1200) Portions of Sectioos 3,4,5,6,7,8,9,16,17, and l8 @eing portions of Tax Int 300, All of Tax Iots 500, 600 and 800) EXCEPTING TIIEREFROM any portions of all of the above property lying within land owned by Roberts Iand & Cfi)e, IJ,C) More particularly shown on USFS Map of Log Creek Allotu€nt MEMO EXHIBIT B PAGE 4 OF 14 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 12 of 22 Fence Creek Cattle Co. v. U.S. Foi Service,602 F.3d 1125 (2010) lO Cat. Oblly 602 F.3d 1125 Udted States Court ofAppeals, Ninth Circuit. f.Sr:g$ ffi SW;E coMpANy, an Oreton parhenhip; Gazelle Land and Timber, LLC, an Oregon Iimited liability company; King Wiiliams; Michael G. Smith, Plaintiffs-Appellants, v. UNTTED STATES FOREST SERVICE, an agency of the United States; Mary Deaguero, in her ofEcial czpacity as Dstrict B:nger, Eagle Cap-HCNRA Districg Wallowa-Whitua-n National Forest; Barbara Walker, in her ofEcial capacity as District Ranger, Wallowa Valley District, Wallowa- Whitnan National tr'orest, Defendants-Appellees. No. 08-3605r. I Argued and Submitted March 1, 2o1o. I trlled April 26, zoro. Synopsis Background: Permiftee brought action agsinst United States Forest Servica (JSFS) and officials therein, alleging under the A&trinistrative Procedure Act (APA) that the decision to revoke its gmzing perrnit was a$itrary and capricious and violated both constitutionat and statutory due process rcquircments. The United States District Court for the District of Oregon, Ancer L. HaggertJr, Senior District Judge, 2008 WL 46102'72, glan'tqd zummary judgment in favor of USFS. Permittee appealed. Eoldirgs: The Court of Appeals, Tallnan, Circuit Judge, held that: [] substantial evidence supported determination that permitte€ had allowed livestock not oyfled by p€rEittee to graze on perrdtted allotnent; [2] substaotial evidence supported determination that permittee had not purchased Sgffi previously permitted to grsze otr aUotneat; aad [3] cancellation of permit did not deprive permittee of due process rights under AlA. AfrrEed. West Headnotes (l l) lrI Adminishative Law and Procedure ts Record Generally, judicial review ofau agency decision is limited to the administrdtive record on which the agency based the challenged decision. 36 Cases.that cite this headDote l2l Adminlstrative Law and Procedure e' Reoord Cout of Appeals allows expausion of the ddrniuisFative record in four uarrowly construed iircumstances; (l) zupplementation is necessary to alet€rmine if the agency has coosidered all factors and explained its decision; (2) the agency relied on documents Dot ill the recor( (3) supplementation is needed to explafu techdcal terrs or complex subjecB; or (4) plaiDtiffs have showa bad frith oa the part ofthe ageucy. 3l Cases that cite this headnote t3I Administrative Law and Procedure F Scope Court of Appeals reviews a district court's decision not to expatrd tbe administative record for ao abuse of discretion. 7 Cascs that cite this hesdnote I4l Woods and Forests ts Forest rcservations, preserves, or parks Livestook graziDg permjtte€, in actioa challenging Forcst Service decision to cancel livestock grazing permih, vas not entifled to supplement a&nidstrative record with files coDcoming ulrelated grazing permits that were not cauc€lled despite being deficient for the I IESTLAW O 2016 Thomson Reuters. No claim to original U.S. Government Works MEMO EXHIBIT B PAGE 5 OF 14 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 13 of 22 Fence Creek Cattle Co. v. U.S. Foi Service, 602 F.3d 1125 (2O1Ol 10 Cal. Daily Op. Serv. 5075, 2010 Daily Joumal D.A.R. 6034 purpose of establishiug bad faith on the part of Forest Service, since materials were trot necessary to complete administative rccor4 and record was otherwise sufficient to conduct Becessary reyiew of the Forest Service's decision. I Cases that cite this headnote t5] Administrative Law and Proc€dure S' Wisdon, judgmeut or opinion Court of Appeals, in reviewing atr agency decision under the Administrative Procedure Act (APA), rtrust be careful aot to substitute its judgment for that of the agency. 5 U.S.C.A. g , 706(2XA). 7 Cases that cite this headnote t61 Admhistrative Law snd Procedure F fubitrary, uuesonable or capricious action; illegality Administrative Law and Procedure ts Clear eror AdministratiYe Law and Procedure ts RatioEal basis for conclusions Court of Appeals, in reviewing agency action under the AdminisFative Procedure Act (APA), examines agency's decisiou io ensure that it has articulated a ratioual relatioaship between ib factual findiags and its decision; it also must determine that its decision was based on relevant factors and does not constihtte a clear error of judgmeDl 5 U.S.C.A. $ 706(2XA). I I Cases that cite this headnote I7l Woods and Forests rts' Forcst rcservatioDs, preserves, or park Substantial evidence supported Forest Service's factual determiuation that livestock grazing permitte€ had allowed livestock not owned by permittee to graze oo perrnitted allohent, so as to srpport Forest Sereice,s caacellatiou of permit for failing to comply with its tems; permittee was unable to produce evidence that it actually owned the EttE observed on the allotEeDt that were irryroperly branded with a temporary hair brand, and even admitted that no such documentation exisled- 36 C.F.R. S 222A(d@). Cases that cite this headnote 181 Public Lands ts Pas$rage and hay Forest Service's determiDation that livestock grazitrg permittee had not puchased EMS previously permitted to grdze orl allohBnt, dnd that permittee had thus failed to comply with basic requirements for waiver of previous permittee's term permit, was supported 6y substantial evidence, so as to support cancellation ofpermit based on failure to comply with eligibility or qualification requireruents; waiv€r for allotrent showed *nt the 247 head of prcviously psrrnitted gffiE were owned by owaers other than previous permittee, and there was no bmnd inspectiou certificate, bitl of sale, calcelled check, or rec€ipt to prcve the pu+orted purchase actually occuEed- 36 C-F.R $$ 222.3(c)(1)(iv), 222.a@)Q)(ii). Cases that cite this headnote I9l Public Lands F Pasturage and hay Puchase of prior permittee's base property by individuals, who were never partne$ in subsequent p€rmitte€ a.od who had not submitted waiver or applied for gazing permit, did not demo$trate prior permittee's waivq of term graziry permit aud thus did aot validate subsequeut permitte€'s livestock graziog perrnit 36 c.F.R $ 222.3(c)(1)(iv). Cases that ciG tlis headlote l10l Federal Courts 6 Briefs Corut of Appeals would Dot addless pemittee,s coDstitutional due process claims regarding Porcst Servic€'s caacellation of graziog permit, where claims were not raised in opening brief. U.S.C.A. Const. Amenrl 14. WESTITW O 2016 Thomson Reuters. No claim to original U.S. Government Works. MEMO EXHIBTT B PAGE 6 OF 14 2 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 14 of 22 FenEe Creek Cattle Co. v. U.S. Fol(. Service,602 F.3d 1125 (2O1Ol 10 Cal. Daily Op. Serv. 5075; 2010 Daily Journal D.A.R. 6032 1 Cases that cite ttris headtrote Ufl Woods atrd Forests ts ForBst reservatioDs, pregerves, or parks Forcst Service, in canceling permitteers glazing permit, did not deprive pelmitie€ ofdue Eocess rights under the Administative Procedue Act (APA); even though Forest Serrrice did uot begin its inquiry until over a year after grazing permit was issued to permittee, the Forest Service had no reason to itrvestigate earlier because it did not suspect sometLing was amiss until a Forest Service employee obsewed ffiEjt with au unauthorized braud on ttre allotuent initiat letters to permittee asking that permittee conirm oMrership of W-e atrd eDtitlement to grazing permit u,ere not show cause letters, and Forcst Service gave uotice and fair opportunity to permittee to answer its conc€ms, clearly advised pennittee ofthe facts leading to the investigatiou, and gave permittee ampl€ opporhrnity io show compliance with ttre terms of the grazing permit. s U.S.c.A. $ ss8(c). I Cases that cite this headnote Attor[eys and Law Firms *1127 Paul A. Turcke Moore Smith Buxton & Tt[cke, Charrered, Boise, ID, for the plahtiffs-appellads. Klllt G. Kastorf(argued) aad David Shilton U.S. Departu€nt of Justice Environment & Natural Resources Division, aud Jobn C. CruderL Assistant Attomey General, for the defeDdants-appellees. Appeal fiom the United States Distict Coult for tho Disbict of Oregon, Aai;er L. Haggerty, Senior District Judge, Presiding. D.C. No. 2:0Gcv-{ t 236-SU. Before RICIIARD A. PAEZ, RICHARD C. TALLMAN, aEd MILAN D. SMITH, JR., CirDuit Judges. Ophior TALLMAN, Circuit Judge: The issueio this case boils dowa to a simple question: Where's tbe beef/ Plaiatiff-Appellaut re @di ES@ Company CEmGI EkF) ctaimed ttrat it }ad purchased over 1,500 head of SffiIE from the former opaer, which it vrished to continue graziug on fedsral land. But when questioned by the United States Forest Service ('Torest Service"), M&C pF.m could not sufficieudy prove that it owned the g$Hqd. Consequeruy, the Forcst Servic€ cancelled portions of -F.6EG ffi! Livestock grazing permit. The Forest Service issued a term gazing pernit to Mlt Etdit on February 5, 2004. The pemit allowed gmm grazing on four allotrnents in Oregon's Wallowa-Whitsnan National Fores[ Chesnimaus, Log ffiffi, DodsorrHaas, and Middlepoint. However, the For€st Service cancelled ES', Eg ffi& use of the Chesnimnus aod Log mx allottreDts on Decomber 9, 2005, for failure to comply with the terms and conditiotrs of the permil mF EFff invoked the Forest Service's intemal procedues for administsatiye review, appealing to both the Deputy FoEst Supervisor and the Dspdty Regional Forester. Each reviewq upheld the decisioo. Still uosatisfied with the cancellation of the two allotstroots, m.EiE ffi filed a coEplaint in the Udted States Distsict Cout for the District of Oregon alleging under the Admidstrative Procedure Acr (.'APA) that the Forest Service's decision was arbitary and capricious and that the Forest Seryice violated both coBstitutiooal ard statutory due proc€ss lequircmens. The district cout gatrted the Forest Service's'suromary judpeut motiot, and we affrm. The facts pertai.uing to the grdzitrg permit at issue arise Aom a real estate taDsaction il Watlowa Counry, Oregon, In September 2003, Ctazplle La.nd & Timber ("Gazelte') purchased over 27,000 acres of *112E land, called the Lucky Diamoud Rancb, 1,459 cows, and 92 bulls fioE Gamet Lewis. The real ostate sales agreement requfued Lewis to deliver graziug permit waivols to GazeUe, or its nominee, for speoific federal graziug alloEnents, including the ones at issue in this appeal. I The roal €stat€ sales agreement also provided that cert itr parcels of laad be deedecl to FEiid ffi. 2 O! February 4, 2004, ffi ffiB submitted atr application for a gnzing pendt for the Chesnimnus, log ffii*, WESILAW @ 2016 Thomson Reuters. No claim to orjginal U.S. Government Works. MEMO EXHIBIT B PAGE 7 OF 14 J I Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 15 of 22 Fence Creek Cattle Co. v. U.S. For, Service,602 F.3d 1'125120101 10 Cel. Daily Op. Serv.5075,20'10 Daily Journal D.A.R. 6034 Dodson-Haas, and Middlepoint allotments. 3 The application was zupported by waivers signed by the previous pemrittees operatiog on tho allotnents: Delbert Lewis, Gamet Lewis, Geraldine Le\r.is, and Barbara Kudma. The Chesnimnus allotment was permifted for 850 head of ffiHB and the Log E:-tukE allotment was pel]nitled. for 24'l head. ftiirt_:E BHff also provided a bill of sale indicating tbat B$JI g"f.tf$- a parhsrship of Wayne and Michele Smith and Bruce and Mary Agar, purchased 1 ,459 cows and 92 bulls fiom Gamet Lewjs. Bruce and Mary Agar, as the partners of EmG PEidiE signod t}Ie application for the grazing psrmit ard the supporting waivers. On February 6, 2004, the Forest Service issued dre grazitrg pormit for the Chesnimnus and Log Wm a otnents pursusDt to the terms of the waivers and application: it agail permitted 850 head of !ffiQ to graze on the Chesnimnus allotnent and 247 head to graze on the Log m-€_f a[otment. In coqjunctioo with the purchase of the Lucky Diarnond Raocb, Gazelte and ffi- cC p'iefi formed a joint ventue with Wayne and Michele Smith, MoDty and Shelly Siddoway, Bryan aud Zachary Williams, and Wyatt Agar iu October 2004. Thejoint venhue agreemont proyided that the memben ofthe j oint venture had purchased smaller parcels ofland that were originally part of the Luclcy Diamond RaDch. It also identified ffiG EEW as the purchaser of nearty 1,500 head of Sffip aod the associated grazing permit. In Juue 2005, sevente€! mo[ths after the issuance of ttre gazing permit, the Forest Service begaa iuvestigating the ovnership of certain Ere that Rick SEith, a Folest Sereic€ employee, bad observed on ffit-C€ F.ffi$ altotmeuts dudng the 20M grazing season. Smith saw m grazing on the Chesnimnus allotsnent bearing a brand otha thal the registered Lucky Diamoud bnnd. The terms aud couditions of fEpe Hru&:E gEzing permit *1129 authorized only ffi PE{eiE F3Eqq to gmze on the permitted allotmetrb. The owner of the g-d.ftI€ seen on tho Chesnimnus allotsuent, Wayne Smit!, claimed that he had sold them to m#ii ffi€& and that the ffi were in fact marked with the Lucky Diauond brand, but it was smaller (and harder to se€) because the brand was affixed as a hair brand rattrer than a cow bEnd. 4 Tterc followed a serie.s oftelephone calls, meetings, atrd wdtteD corn:nunications. Bruce Agar totd the Forest Serrice tht fff?d @ originally planned to cull the ffiEE purchased Aom Gamet kwis and replace the culled EEffi witl ffi purchased from Wayne Smith and Mouty and Shelly Siddoway. Although the grazing pemit did not list either Walme Smith or the Siddoways as parhers of m& 6Y'-re0E, Bruce Agar claimed that the intent was to include at least Wayre Smith as a partner of B€tr_GE ffc:4. Unsatisfied with the :explaration offered by Wayne Smith and Bruce Ag8r, the.Forest Service decided to seek clarification ofwho owned fte -iiaT[Iq to determine if fifther action was necessary, The Forest Service sent a writteo request to Ei.-5iE gfdm on June 28, 2005, seeking additional documentation that Sm &=9.a.[ was in compliance with the terrns and conditions of the grazing permit. The letter explicitly stated that re RiEG.E needed to submit proof of ownership of the livestock permitted on the allotnonts and listod acceptable methods of prcof. It also reminded Bruce and Mary Agar that "onty livestock owned by the pernittee are authorized to gmze under this permit." This letter did Dot state that ffi ffi13 gazing permit would be subject to canc€llation; it simply requested verification that ffi ffij.tiB met the eligibility requilem&ts for its grazhg pemit. The Agars visited the local Forest Service offce to address the issues identified iu the 'pvrifteo inquiry. They produced brand inspection certificates for 600 head of ffiE purchased from the Lewis family tu 2003. The Agars admitted that tley only purchased 600 head and that they had never received a bill of sale listing them as purchasing all 1,459 cows and 92 bulls. Instea4 they inteuded to buy 600 head Aom the Lewi6 family and then add another 400 contributed by Wayne and Michele Smith and Monty and Shelly Siddovay as capital. for the SffijQ ffi .lE parbrenhip. ODe month later, the Agars submitted idorEation claiming that they had in fact purchased 1,459 cows and 92 bulls, but that only 600 cows and 25 bulls were brand inspected for ffi Et*. EQffF Et6eN rcpresented that it theB "obtained an additionat 200 head of cows and l0 butls from Wayne Smith -.. and obtained another 175 head from Mouty Siddowsy''to make a herd of spproxiruatoly 1,000 head of $ffi. While the Forest Service was iuvestigating ffi trEBi graziDg iermit, the joiut venture fractued and the parties €ntered iDto a settlement agreement oD June 17,2OO5. Undet the terms of this agreemetr! Bruce and Mary Agar we,Ie to rcceive al buprsum buyout in exchange for the tansfer of aU right,rtiflo, ard itrt€rest in tie ffi m parheGhip and branils, as well as the graztrrg pemit issued to mEEt SttiSE The Agars also relinquished atl right, titlg ancl interest ia Gazellb. King Williams, a partial owner of Gazelle, theu notified 6e Forest Service tiat he was in contol of SE gf6!-E Bruce aad Mary Agar requested the Forest Service contact Williams regarding its *1130 concems over the wESI{.AW @ 20'16 Thomson ReuJers. No claim to original U.S. Government Works 4 MEMO EXHTBIT B PAGE 8 OF 14 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 16 of 22 Fence Creek Cattle Co. v. U.S. Fod Service, 602 F.3d 1125 (20101 10 Cal. Daily Op. Serv. 5075, 2010 Daily Journal D.A.R. 6034 grazing perrnit issued in February 2004, but the Forest Service responded that it needod to ensure that m;!!E ffi.tr had in fact purchased fie ffffii ftom Gamet kwis before it would accept a waiver of the grazing penDit fiom the Aga$ to Williams. Th6 Forest Seryice sent the Agars a lgtter on September 6, 2005, with a copy to Williams, again attempting to acqute infonnatiou that would validate the graziag permit issued to Mgii @08 in February 2004. It explicitly stated that the grazirg permit could be caucelled if $$ffi g-_f,QgB failed to provid€ the necessary documentation and requested a response by September 30, 2005. ln response, the Agars stated that they had oo brand inspection certificate validating the puchase of 247 pemitted Wffi for the Log ffifl allotnent aDd that they only purchased 600 cows from Gamet Lewis. The Agals told the Forest Service that Wayne and Michele Smith and Monty and Shelly Siddoway woro supposed to bo parhels in E{&t W-, but were mable to obtain financing. The Agars admitted there was ro brand inspection certificate showing that re ffiE bad purchased the [i"ftFg "contributed" by bither the Smiths or the Siddoways. King Williams responded by arguing that the grazing perruit for the Log pi,$[ alloturent vas waived on the basis of the purchase of the bas€ properfy, ard that ffi,-[Q p._Iffi culled a substantial portion ofthe 1,459 cows ad 92 bulls purchased from Gamet Lewis. He also asserted that tie Folest Seryice lanew ofthe culling ofthe origiual Lewis herd and that E_hffS€ -@itE# did not have the uecessary 'laper hail" because the Forest Service staff "always assured [ffiffi ffiffi that they had all ofthe necessary docum€nts." The Forest Service finally sent the Agars a letter on December 9, 2005, notiffing ttrem of caucellation of the permit for the Log PjEu allotment "for failure to couply with the couditions for waiver of a t€rm grazing pemit." The ForEst Service also reduced the permit for tbe Chesnimtrus allottrent by 250 head of co calf pairs "for failure to comply v/ith tle conditioos for waiver of a term graziag permit." Fiaally, the Forcst Service cancelled the permit for tbe Chesoirnnus allotmetrt i! its entircty "for allowing livestock not owrcd by the perrnitte e to graz€ on the permitted allotuent.', ffiiEH ffi{iE adEinistativety appealed the Forost Service's decisioo, claiming that it wa.s arbitrary ald capricjous aud therefore in violation of the APA. The Forest Service,s decisiou was upbeld oD the first-level appeal. The Deputy Forcst Supervisor found "insufficieut evidence to support waiver and issuance of a term gDzing porrnit" for tho Log @ allotment based on tfle purchase of either base property or permitted livestock. The reviewing official found there was no evidence that ttre Forest Sorvice had approved extensive culling by Slffr ffi justiffing the reduction of permitted gm on the ChesniroDus allotnent. Additionally, the Deputy Forest Supervisor found "uo documentation to support IEF.EgE gFm cbim that [it] acquned Montlyl Siddoway or Wayne Smith livestock pdor to stocking them on tle Chesnimnus allotuoul" Iinally, the reviewing offic€r found thit there was suffioient support in 0te record for ttre complete cancellations. The De?uty Forest Supervisor also denjed aU of ffiEq E*ffElS challenges regarding the facdnding procedures employed by the Forcst Sorvice. Effiai ffi then sought review through a second-level appeal. The Regional Forester affirrned the Forest Service's cancellation ofthe Log ffi asd Chesnfunnus allotsnetrts for reasons similar to those identified in the firstJevel appeal. r113f Because ffi &ffi had ex.haustod its administbtive remedies, it filed a complaint iu the District of Oregon alleging violations of the APA ard statutory ald coDstitutioEal due process guaraEtees. @i 8". e-68 sought to. expand the admiDisfative rccord by adding Forest Service flles from twenty-five other grazing cases, aud both parties filed motioDs for summary judgnent. The district cout rcfi.lsed to expand the administrative record, and then granted the Forest Service's motion for summary judgmeot, cotrcluding that the Forest Service provided 88ffi Pffi all the due process required urder the APd aud that the Forest Sereice's ' decisiotr nas Eot arbitrary and capricious, SISG ffift timely filed a Notice of Appea[ givilg us jurisdictioa under 28 U.S.C. $ 1291. tr Ul A I3l Generally, judicial review of an agency decisiou is limited to the administrative record on which the ageDcy based the ihallenged decisiot Londs Council v. Powell, 395 F.3d 1019, 1029 (9th Ctu.2005). We altow expansion of the adminisfrative record in four narrowly construed circumstances: (l) supplementation is necessary to determine if the agency has considered atl factoE and explained its decisiou; (2) the agency relied otr dooments not iB thg record; (3) supplementatiou is needed to explai.n t€chnical terrns or corylex subjects; or (4) plaintift have shown bed faith on the part of the agency. Id. at t030. ITYESTI AW O 20'16 Thomson Reuters. No claim to original U.S. Government Works MEMO EXHIBIT B PAGE 9 OF 14 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 17 of 22 FenLe creek Cattle co. v. U.S. ForL - service,602 F.3d 1125 (2010) 10 Cal. Daily Op. Serv. 5075, 2010 Dally Journal D.A.R. 6034 We review a district court's decision not to expand the administative record for an abuse of discreti oD. See Sw. Ctr. for Biological Diversity \'- U.S. Foresl Sen., 100 F.3d lzl43, 1447 (9th cit.1996). l4l The files ffi€ *g.f:E* wished to include concerned twenty-fiye gmzhg permits that were not cancelled by the Forest Service despite being deficient. Tbe district cout denied S$ilg Et-S&-e'-C request bocause it found the adminisfative record was complete aud that ffi ffi did not make ao adequate showing of necessity or explain its failue to supplement the record before the agency, On appea[ ffiE pf. -rifE aryues tbat the proffercd material would '?dvaDce the intuitive notion that the Forest Service dramatically over-reactedlsic]." We interyret Eml W.e-*:i argument as an attempt to supplement the record in order to establish bad faith by the Forcst Service. However, as discussed more thorough.ly below, the Forest Service's decision to cancel *EBE mffiE grdzing permit for ttre Chesnimnus and Log S.m a[otueDts was justified. fW. pFE'eE h8s oot shown that reyiew of ageucy files of tweDty-five uDrelatEd grazing permits and actioDs taken conceming those permits would demonstate that the Forest Servic€ acted in bad faith in this specific case. E€ir.H F-.r-Ei* has not met its heavy burdeu to show that the additioual materials sought are-necsssary to adequately review the Forest Service's decision here. As we said in Lands Coucil,395 F.3d at 1030, "[t]hese limited exceptions operate to identiS and plug holes in the administative record." mIE ffi has failed to show any such gaps or holes. We think the volumiDous remrd already before us is suffcieDt to conduct the necessary review under the APA, We simply caDlot say that the district coult abused its dissretioa in denying moe Effimotion. Itr Feuce Creek next chall€nges the propliety of tle Forest Service's decision to caacel the Chesnimnus and Log CiGek allotu€nb. The. district cout ganted suEmary judgmerxt to the Forcst Ssvice ou these issues. We conduct a de qovo rsview of a distict court's grad of sumDary judgment. Anchustegui v. Depl of *1132 Agnc.,257 F.3d 1124,1127 (9th Cir.2001). Our review of the ageDsy's decision is 'Aom the same positiou as the district cout. 1d at I 128. t5l [6] When reviewing agency action, ttre APA dtuects us to "hold uolawful and set aside agency action, findings, and conclusions found to be . . . arbihary, capricious, an abuse of discretion? or otherwise not in accordance with law." 5 U.S.C. $ 706(2XA). We must be caroful not to substih.rte our judgnreut for that of the agency. Motor Vehtcle Mfrs. Ass'n v. State Farm Mut. Auro. ltlf.. Co., 463 U.5.29,43,103 s.ct.285b,77 L.Ed.2d 443 (1983). Instead, ne examine the agoncy's decision to ensulc that it has aficulated a mtional relatioDship betweeD its factual findings and its decision; we also must determine that its decision was based on relevant facto$ arld does not constitute a clear eIIfi ofjudgment. ,ad. ffififfi €&€B challenges the Forest Service's decision on two grounds. Fint, it argues that the decision was a clear error iu judgmert because the Folest Servico did trot explicidy find that BEETE S|tgfi knowingly and willtutly misrepresented any facts relating to the puchase of the Lucky Diamond Ranch and the permitted livestock. It then argues that the cancellation was aftitrary atrd capricious because m€ !$reEE adequately proved that it purchased the livestock rccessary to support waiver ofthe grazing permit, ffiE{ ffits relies on a federal regulatiou, 36 C.F.R g 222.a@)$), to suppofi its argumeDt that the Fortst Service xoust make a factuat findiag tbat ffiFI ffi acted *knon ingly and wiltflrly'' before it may exercise the authority to cancel th6 two allohents. The subsection upon which ffiffi ffiffi rclies gives the Forest Service the authority to "[c]anc€l or suspend the permit if the permittee knowingly and willfutly makes a false statement or r@r€seDtatio! in the grazing applicatiou or amendm€nts thercto." /d We do trot aeed to address whether the Forest Service adequately made a fi.rding of knowing and n illft. action, however, because the Forest Service's caacellation of the gmzing permit is authorized under differsut subsections of36 C.F.R $ 222.4. B [7] The Forest Sewice may cancel a graziDg permit "if the pemitt€e does Eot comply with provisions and rEquirements in the graziag permit." 36 C.F.R $ 222.4(aX4). This authority does not iequirc the Forest Sereice to fitrd tbat the permittee acted Imowingly or wiltfrrlly-the Forest Sewice need only \tfESTtA\i, @ 2016 Thomson Reuters. No claim to orioinal U.S. dovernment Works MEMO EXHIBIT B PAGE 10 OF 14 6 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 18 of 22 Ferice Creek Cattle Co. v. U.S. Foi - Service, 602 F.3d 1125l2O1Ol 10 Cal. Daily Op. Serv. 5075, 2010 Daily Joumal D.A.R. 6034 ascertain tiat E'qij"g ffigdB violaled the terms and conditions of the grazing permit Id. T\e graziagpermit issued to m--C,$ gie}.E in February 2004 explicidy prohibits tlle grazitrg of livestock other dlatr (ts_.fiIt owned by the permittee on ttre allot neuts encompassed by the permit. Io its December 9, 2005, tetter, the Forcst Servic€ uotified EEnF.{ Ea}.E that it was caacelling the ChesuimNs allottrent for such a violation: gC6"-nE Gfdr,t "allow[ed] livestock uot owned by ttre permittee to graze on the permitted altotment." We caDrot conclude that the Forest Service act€d arbiharily or caprici ously in doing so. The Forcst Service questioued ffiqe EJlteF,E compliance with the terms of its grazing pelmit beca se 84re without tle appropriate brand were se€n on the Chesnimtrus allotment and subsequendy moved to anothq part of Orogon. That necessarily caused the agency to question who owtrod the qSIE grazing on its land- When the Forest Service investigated, all the parties inyolved stated that Waytre Smith and Motrty Siddoway "contributed" the F-ffi to rem 'CtsG#. Additionally, *1133 the Forest Service discovered that some of the improperly branded ffiffi wep also marted with a temporary Lucky Diamond brand-a hair brand. As a result, the Forest Service expressly required tsgltgg ffiffi to produce supporting documentation "in th€ way of cancelled checks, bills of sale, or Oregon State braud inspections showing that Walre SEith or Montb/l Siddoway E@ were puchased by' F.elCE ffi.p- But EdEe W-I nevsr produced the requested documentatiotr atrd even admitted that oo such docuueatation existed. 5 Furthermore, the ternporary hair brauds on some of the 'ffiE lverc not sufficient to prove owaership. Based on the lack of evidence that F^Q[ig_:e EFEft acurally owaed the ffiffi observed on the Chesrnimnus allotuen! we conclude that subshtial evideace supports the ,Forest Sersice's factual fiading of non-ownership. ,See Gebhort v. SEC, 595 F.3d 1034, 1043 (9tI Cir.20l0) (reviewing an agends factual fildiug to deternitre if it was supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'). This factual Eading eoabled tle Forest Service to canc€l F_trg€ ffiE gmzing permit for failing to comply with the tenEs of the grazing perE'it. .tee 36 C.F.R g 222;ag)@). Ir also Fovided the requisite "ratioBal connectioD between the facts found ard the choice made." See Ariz. E4& Growers Ass'n v- U.S. Fbh & Wildlife,273 F.3d 1229,1236 (9rh Ct.200l); id. at tZ3B- 39 (applying the standard of review to tbe issuance of an IDcidentat Take Statemert). t8] rrlr'p uphold the cancellation of the grazitrg permit covering pre Log Creek allotmeut for siuilar re€sons. The Forest Sejrvic€ has the ability to caaccl a gazing permit "in the ei,ent the permittee ... [r]efiues or fails to comply with el.igfbility or qualification requiements." 36 C.F.R $ nZ.+(a)(l)(ii). Fence Creek lost its permission to graze ou the Log Qreek allotment because it fail€d to comply wittr the basic reqiriremeuts for waiver of the former Lewis/Kudma gmzing d€rmit fuecifically, F'ence Creek did Dot submit evidence |o the lorest Servic€ shoydng that it had puchased the 247 hleail of cattle previously permitted to graz€ on the Log Cree'k alloFcEt Federal rcgulations allow tho issuauce of a oew grazing permit "to the purchaser of a permittee's permitted livestock and/or base property, provided the psrmittee waives his tqm permit" 36 C.F.R. $ 222.3(c[l)(iv). Effi 535 submitted a waiver for the Log m auotsnent based on the purchase of the 247 head of Lewis and Kudma mE tha) were previously permitted on that allotment. But, S6.EE ptrfi wits unable to prove that it had actually puchased these ffi. The ouly brand inspection certificate Wlm @HS produced shows it bought 600 EE marked with the Lucky Diarmnd brand Aom Gamet Lesris. The waiver for th6 Log @! auotEent shows the 247 head of previously permitted $ffi were instead owned by Geraldine Lewis aud Barbara Kudma. There is no brard inspection certificate, bitl of sale, cancelled check or receipt to prove the purported purchase actually occurred. Barbara Kudma's affclavi! in which she aveB that Emi @ purchased the -Ell*tE, does Dot conchsively establish that ffift ffi complied wittr the requirements of obtaining *1134 its gnzbg permit by purcbasing the previously permitted livestock. Tbe Forest Sereice repeatedly infomed Sd.fl"jq' EF,Hi that it would need to submit confrming documo s such as bills of sale, brand inspection certificates, or cancelled checks to establish onmership, but ffi.ff EWG failed to do so. Thus, the Forest Service's determinatioD that @F E-€,Gft did not purchase the ffiffi is sup'ported by substartial evideuce aud provides an adequate basis for the challenged carrcellatioD- See Ariz. Wffi Growers Ass'n, 2?3 F.3d at l23E-39, Th€ Forest Seryice's determination was, therefore, neither arbita4r nor capriciols. I9l FFE gEB also Bsserts that it rlet the eligibility rcgufuemeuts for waiver ofthe Log ffi allotuent because C T'TESTLATU o 2016 Tho"'' .n Reuters. No claim to original U.S. Government Works MEMO EXHIBIT B PAGE 11OF 14 7 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 19 of 22 FenEe Creek Cattle Co. v. U.S. For, Servlce, 602 F.3d 1125 (20101 l0Cal.DailyOp. Sene@ it purchased the base property. However, even if we were to assume the validity of th€ itrcomplete waiver identiffing the purchase of the base property as the reason for the waiver, the record does not support tle statement that -:ffihq PfiffiB bought the base property. A statutory '#arBnty deed for the base, Fopefiy of the Log gt'eeE allohent lists MoDty and Shelly Siddoway as the purchasers. The Siddoways did trot submit the waiver or apply for the grazing permig and they were never parhers in ffi_{ mqE. Therefore, the Forest Sewice properly concluded that the Siddoways' purchase of the base property does not validate 4ElrC ffi*J gnzing pennit.,9ee 36 C.F.R g 222.3(c)(l)(iv). Fence Cre+k applied for the grazing permit because it bad allegedly purchased over 1,500 head of cattle. Howwer, it could trot sufficiently prove atry such transactioo ever took place. Coasequendy, the Forest Servic€ did not act iD atr ehit'ary or capricious manner when it cancelled Feuee Creek's grazing rilrhts for two allotrents withiD tlie Wallowa-Whihaa Natioml Forcst w U0] ffiG.S B,e'} challeoges the cancellation of pare of its grazing permit by arguitrg that the Forest Service yiolated the due proc€ss requfu€meDE set forth h the ApA.6 The dishict court grauted suomary judgment in favor of tbe I'orEst Seryice oa this issue, so we review its clecision de tovo. Anchustegui, 257 F.3d at 1127. UDdu the APA, a! ageacy camot lawfirlbr su+ead or revoke a license unless thq [ceusee has been giyen writteq Botice of the facts warranting the action aud aD opportunity to demonsEate compliance with the requirements "before ttre institution of agency proceedings." 5 U.S.C. $ 558(c).7 We have previously applied these protections to graziug permi ts. See Anchustegui, 257 F .3d at U29 . ln Anchustegui, 257 F.3d at 1128-29, we invalidated tho Forest Servic€'s decision to caucel a graziog pefinit because the permittee was violatiug the terEs of the perruit. We held that the Forest Service failed to give the permittee ..an opportuaity to achievo complimcE or to demoDstate *l 135 that be had achieved compliance before the institution of agency proceedings." Id. at 1129. The Forcst Service had not provided adequate notice uuder $ 558 because its initial contact vith the permittee was to issue a show cause letter stating that action was warranted and that the grazing permit would be caucelled unless the permittee could show why caucellation was trot appropriato. 1d In essence, tho Forest Service had instituted agency proceedings because it had already determined that the $azing permit would be caucelled without notifring the pemittee that cancellation was wananted or giyilg the pormitte€ an opportunity to coroct or explain his violations. 1d [11] mil&q Sf_Ee*Lr protestations that similar eyetrts occurred in this case are unavailing in light of the record before us. We are not convinced that the Forcst Service had already decided to ceDcel the Chesnimnus and Log ETiffi a[otsnents before it contacted mE@ g.FS about its cotrcems. The fi$t written communication from ttre Forost Service to EE Wffi was sent over five montis prior !o the cancellation decision. This letter, ta,ritteo on JuDe 28, 2005, was not a sbow cause letter. It set forth the reasoDs for the Forest Service's inquiry and explicitly identified wbat docuaents gffi mEE needed to provide in order to conf nn oi'nership of the ffiEi and entidement to the glazitrg pennit. The letter did not state that @-( EEE_d#i grazing pemit wciuld be caucelled nor did it indicate in any other vay that agency prcce€dilgs had begu.E. The letter sent to m*E E$g on September 6, 2005, also was not a show cause letter. As it explicitly stated, the purpose was to provide HIE F{tr "an opportunity to presetrt full and complete uDderstaDdiDg of the existing supporting evidence and provide additional information, as nec€ssary.': The letter respoDded to the docunenb mE WS hdd submitted and explained why thoso doc-umeEts werc inadcquate to show compliance with the terEs aud conditioDs ofthe gazing pernit. Unlike the earlier com::runicatior, this letter warned m+ Pf#B that its failue to meet the requLemeEts "could rcsult in the cancellation" of its gazing permit Nonetheless, ttis second copmudcation is still distiuguishable from the letter aAnchuslegi,25T F.3datll29.The Forest Service did uot toll ffi ffi in the secoqd l€tter that its gazing porEit would be car,(Ellel unless it produced certain documetrts; such language would indicate that th€ decisiotr had already been made. Ratber, the Forcst Service stated ttrat cancellation could occut, illustrating tlat the Forest Service was merely investigading, and agency revocation proceedings had not yet been initihted. ffim EftieX fiuther argues that they were deprived of a meaningfirl opportunity to comply with the terrru of the grdzilg permit because the Porest Service did not begin WESILSW O 2016 Thomson Reuters. No claim to original U.S. Government Works MEMO EXHIBIT B PAGE 12 OF 14 I Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 20 of 22 Fence Creek Cattle Co. v. U.S. Fd - Service, 602 F.3d 1125 (2010) 10 Cal. Daily Op. Serv. 5075, 2010 Daily Joumal D.A.R. 6034 its inquiry until over a year affer Oe graziag permit was issued. However, the timing of the Forest Service's inguty does not invalidate the decision to cancel the Cheso.irnnus and Log ffi-E allotrnents. The Forest Service issued the grazing permit because F-BJ FE€E initially rcpresented that it had firlfilled the eligibility rcquircmeDts. The Forest Service began to question ffiEG ffi rcpresentations only after it began to suspect that something was amiss, i.e., a Forest Service employee obsewed if,![-I! with an unauthorized brand gazing on the Chesnimnus allotnelt, and then leamed that those ffiflli were moved to a differcnt part of Oregon. The Forcst Senrico had no reasou to investigate earlier, making earlier notification infeasible. Had ffiffi m achrally fulfilled the requiromotrts of obtaining a *U36 graziig pemit, it would not have been difficult to provide respoDsive documents to assuage the Forest Service's coEcem. We are thus satisfied that the Forest Service ftlly complie.d with the due process requircments of the APA. It ga]/e trotic€ atrd fair opportunity to ffie €t4et to aDswer i8 concems. It clearly advised ffi@ff of the facts loadilg to the Forcst Servic€'s investigatiorq and it gave F-Fj ffip_l$ aepte opporh.nity to show coEpliaDco with the terms of tlJ,e gaziag permit. As required under $ 558, all of this preliminary notification and iuvestigation was done "before the hstitutioD of agency proceedings." 5 U.S.C. $ 55E(c). Ttre Forest Service gave ffi F-.qeE almost six months to sbow dlat it owtred either the permitted livestock or the bas€ property supportitrg traosfer of the grazing permits. It could not. The district court pmperly denied FIAEd P_reFB,lq motion to expand the administmtive record aud correctly entered surnmaryjudgmeat for the Forest Seryice. The Forest Service did not aCt arbiharily or capriciously when it cancelled the Chestrimnus and Log @B alloheots, ald it Fovided adequate due prccess to m,EEffi as required by the APA. ATTTNMBD. All Citations 602 F.3d.1125, 10 Cal. Daily Op. Serv. 5075, 2010 Daily Jouraal D.A.R. 6034 Footnotes 1 A grazing permit authorizes the holder to graze livestock on speclfic allotments of the National Forest Service lands. S6e 36 C-F.R. S 222.1(bXS). An allotment is a designated portion of govemment land arailable for livestock grazlng under terms and conditions speclfied in this special use permit. Sea d S 2?2.1(bX1). A permit holder has first priorlty to receive a new permit at the end of the term period. /d. S 222.3(c)(1)(ii). lf the permittee sells the livestock allowed to graze on an allotment, a new term permit is issued to the purchassr only if the original permittee waives his term grazing p€rmit in favor of the purchaset. ld. 522.3(cl(11(iv). Thus, a waiver is essenfially a transfer of the original permit holde/s grazing rights to the purchaser and is necessary for the purchaser lo oblaio a new grazing permit. 2 Tne real estate sales agreement identified Gazelle as ule 'Buyef and camet Lewis and his family as the "Seller.' Numerous addenda to the agreement involved parties not lisled in the original agreement including EEFE gE*8. ft is uncl€ar ftom the record why the additional parties beneftted from the real estale transaction; we can only assume it was in conjunction with the ioint venfure formed after the hansaction occuned. 3 Although the Forest Servic€'s inquiry into ffi!ffi EEEF grazlng permit included all four allotmenb, the Forest S6Mce took no aclion against the Dodso}-Haas and Middlepoint allotments. Therefore, this opinion will dlscuss only 0te Chesnimnus and Log W allotments. 4 A hair brand is a temporary brand because it only bums the hairand does not damage the skin. Because it simply bums the animal's hai( it only lasts until the bovlne sheds its hair. 5 EtrlF p,eElt submitted an undated, unsigned blll df sale for 2OO cows and 10 bulls sold by Wayne Smlth to mffi BFIB as well as an undated, unsigned bill of sale for 175 cows and 10 bulls sold by Monty and Shelly Siddoway to ffiP.d mER. Those incomplete documents are not adequate to establish that the intended transaction cam6 to frultion. 6 fffiEgEffi complaint alleges violations of both constitutional and statutory due process. ln its opening brlef, however, f€Ef! Effit challenges only the decision, or lack thereof, regarding the statutory due process protections. Because constihitional due pro@ss arguments were not addressed ln the opening brief, we do not address that issue here. Ses lndep. ToweE of Wash. v. Washington,350 F.3d 925, 929 (gt'h C|*OO3) ('[ryje will not consider any claims that w€rs not actually argued in appellants opening brief."). WESTI-A!ry @ 2016 Thomson Reuters. No claim to original U.S. Government r,yorks MEMO EXHIBIT B PAGE 13 OF 14 o Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 21 of 22 Fence Creek Cattle Co. v- U,S. Foll Service, 602 F.3d 1125 (2010) 7 Section 558 does not apply 'in cases of willtulness." 5 U.S.C. S 558(c). As explained supra, the Forest Servica did not base its decision on a finding of wiltfulness, making the exception irreleyant to the issue before us. End of Document @ 2016 Thomson Reul€rs. No claim to original U.S. Govemment Works. WESTL*W 10O 2016 Thomson Reuters. No claim lo original U.S. Government Works MEMO EXHIBIT B PAGE 14 OF 14 Case 2:16-cv-01493-SU Document 20 Filed 05/12/17 Page 22 of 22