FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH R. BUCKINGHAM,
Plaintiff-Appellant,
v.
SECRETARY OF THE U.S.
DEPARTMENT OF AGRICULTURE; No. 09-15893
CHIEF OF THE FOREST SERVICE;
D.C. No.
REGIONAL FORESTER FOR THE
INTERMOUNTAIN REGION OF THE 3:07-cv-
FOREST SERVICE; FOREST 00073-BES-RAM
SUPERVISOR OF THE HUMBOLDT- OPINION
TOIYABE NATIONAL FOREST OF THE
FOREST SERVICE; DISTRICT RANGER
FOR THE SANTA ROSA RANGER
DISTRICT OF THE FOREST SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
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.
6345
6348 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
COUNSEL
Therese A. Ure, Schroeder Law Offices, P.C., Portland, Ore-
gon, 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.
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6349
OPINION
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 For-
est Service, the Regional Forester for the Intermountain
Region, the Forest Supervisor for the Humboldt-Toiyabe
National Forest, and the District Ranger for the Santa Rosa
Ranger District (collectively, the Forest Service). Bucking-
ham sought judicial review, pursuant to the Administrative
Procedure Act (APA), of the Forest Service’s decision to can-
cel his permit to graze cattle in the Santa Rosa Ranger District
of the Humboldt-Toiyabe National Forest, claiming, inter
alia, that the Forest Service: (1) erroneously enforced a permit
lacking clearly defined pasture boundaries; (2) violated Buck-
ingham’s Fifth Amendment procedural due process rights by
not affording him adequate pre- or post-deprivation proce-
dures; (3) failed to give him notice and an opportunity to
demonstrate or achieve compliance as required by the APA,
5 U.S.C. § 558(c); and (4) improperly considered Bucking-
ham’s prior history of non-compliance with his permit in
making its decision. The district court upheld the Forest Ser-
vice’s decision, and this appeal followed. We have jurisdic-
tion to review this decision under 28 U.S.C. § 1291, and we
affirm.
BACKGROUND
I. Legal Background
The Forest Service manages 155 national forests, 20
national grasslands, and 8 land utilization projects on over
191 million acres of land within the United States (collec-
tively, the National Forest System). 36 C.F.R. § 200.1. The
Forest Service administers the National Forest System under
the National Forest Management Act of 1976 (NFMA), 16
6350 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
U.S.C. §§ 1600-1614, which “establishes a two-step process
for forest planning,” Native Ecosystems Council v. U.S. For-
est Serv., 418 F.3d 953, 957 n.1 (9th Cir. 2005). First, the For-
est Service develops a land and resource management plan
(Forest Plan) for each unit of the National Forest System. Id.
(citing 16 U.S.C. § 1604(a)). Second, “the Forest Service
implements each Forest Plan by approving or disapproving
site-specific actions.” Id.
The Forest Service authorizes grazing within the National
Forest System on “allotments” pursuant to the Federal Land
Policy and Management Act of 1976 (FLPMA), 43 U.S.C.
§§ 1701-1787. “Allotments” are “designated area[s] of land
available for livestock grazing.” 36 C.F.R. § 222.1(b)(1). The
Forest Service divides allotments into smaller areas, referred
to as “units” or “pastures.” Or. Natural Desert Ass’n v. U.S.
Forest Serv. (ONDA), 465 F.3d 977, 979 n.2 (9th Cir. 2006).
The Forest Service exercises its authority under the
FLPMA to permit grazing on allotments by way of three dif-
ferent types of site-specific actions, see ONDA, 465 F.3d at
979-80, all of which must be consistent with the applicable
Forest Plan, see 16 U.S.C. § 1604(i). First, the Forest Service
issues grazing permits, which are “document[s] authorizing
livestock to use National Forest System or other lands under
Forest Service control for the purpose of livestock produc-
tion.” 36 C.F.R. § 222.1(b)(5); see also 43 U.S.C. §§ 1702(p),
1752(a). Typically, a grazing permit will specify: “(1) the
number, (2) kind, (3) and class of livestock, (4) the allotment
to be grazed, and (5) the period of use.” ONDA, 465 F.3d at
980. The standard term of a grazing permit is ten years. See
43 U.S.C. § 1752(b); 36 C.F.R. § 222.3(c)(1). The Forest Ser-
vice “is authorized to cancel, modify, or suspend grazing and
livestock use permits in whole or in part” if the permittee fails
to comply with the requirements of his or her permit, or with
governing regulations. Id. § 222.4(a)(4).
Second, the Forest Service develops an “allotment manage-
ment plan” (AMP), which is “a document that specifies the
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6351
program of action designated to reach a given set of objec-
tives” as to a specific allotment, including “the manner in and
extent to which livestock operations will be conducted in
order to meet the multiple-use, sustained yield, economic, and
other needs and objectives as determined for the lands,
involved.” Id. § 222.1(b)(2); see also Natural Res. Def. Coun-
cil, Inc. v. Hodel, 618 F. Supp. 848, 859 (E.D. Cal. 1985)
(characterizing an AMP as “ ‘the penultimate step in the mul-
tiple use planning process’ and as ‘basically land use plans
tailored to specific grazing permits’ ”) (quoting George C.
Coggins, The Law of Public Rangeland Management IV:
FLPMA, PRIA, and the Multiple Use Mandate, 14 Envtl. L.
1, 23-24 (1983)). The Forest Service incorporates the AMP
into the applicable grazing permit unless it has not prepared
an AMP or it determines that an AMP is unnecessary, in
which case it includes in the permit itself “such terms and
conditions as [it] deems appropriate for management of the
permitted or leased lands.” 43 U.S.C. § 1752(e).
Third, the Forest Service develops and issues annual oper-
ating 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 con-
veys 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 condi-
tions that the Forest Service could not or may not have antici-
pated and planned for in the AMP or grazing permit . . . .” Id.
at 980-81. The Forest Service typically incorporates the AOP
or AOI, like an AMP, into the grazing permit, which then
“governs the permit holder’s grazing operations for the next
year.” Id. at 980.
II. Factual and Procedural Background
Buckingham resides in Paradise Valley, Nevada, and owns
and operates a livestock operation located within the
Humboldt-Toiyabe National Forest. In 1983, the Forest Ser-
6352 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
vice issued Buckingham a grazing permit for land in the But-
termilk Allotment of the Humboldt-Toiyabe National Forest’s
Santa Rosa Ranger District. The Forest Service attached a
map of the Buttermilk Allotment to the 1983 permit, reflect-
ing the Allotment’s boundaries and those of its various pas-
tures. From 1983 through 1988, the Forest Service issued an
AOP annually, specifying the pastures Buckingham could use
within the Buttermilk Allotment (e.g., Spring City, Butter-
milk, Black Ridge, Lye Creek, Buttermilk Meadows), the
number of animals permitted in those pastures, and the dates
of use for those pastures. The Forest Service expressly incor-
porated each AOP into Buckingham’s applicable grazing per-
mit.
Buckingham renewed his grazing permit in 1989 and 1999.
The 1989 permit included a map showing the relevant bound-
aries 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 live-
stock 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 Jan-
uary 1998 and June 2004, the Forest Service issued at least
seven notices of non-compliance to Buckingham because he
had grazed his cattle in rested pastures. In addition to those
notices of non-compliance, the Forest Service twice sus-
pended 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
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6353
grazing permit. The Forest Service informed Buckingham that
under the 2004 AOI, he was permitted to graze 1098 cow/calf
pairs in the Spring City Unit between May 22 and June 22,
and then to graze them in the Buttermilk Unit from June 23
to August 28. Eight days before the authorized entry date,
however, the District Ranger discovered 67 cow/calf pairs
that belonged to Buckingham grazing in the Buttermilk Unit,
and “[t]he forage use in the area indicate[d] these cattle [had]
been in [that] unit for quite some time.” The District Ranger
began his decision by noting Buckingham’s “recent and long-
term history of non-compliance” and the Forest Service’s
“initial, but unsuccessful attempts to resolve this situation”
with Buckingham. According to the District Ranger, “[i]t
[was] apparent to [him] that [Buckingham] [had] little regard
and [made] little effort to comply with the terms and condi-
tions of [his] [AOI] and [his] term grazing permit.” As a
result, the Forest Service cancelled 25 percent of Bucking-
ham’s authorized use under his grazing permit. The Forest
Supervisor and Regional Forester affirmed the District Rang-
er’s decision.
As a result of the Forest Service’s June 2004 cancellation
decision, it replaced Buckingham’s 1999 permit with a
revised permit incorporating the partial cancellation. Under
the revised permit, the Forest Service authorized Buckingham
to graze only 824 cow/calf pairs, rather than the previously
authorized 1098 cow/calf pairs, during the grazing season. As
with the 1999 permit, the revised permit did not include a map
of the Buttermilk Allotment or its pastures.
In May 2005, the Forest Service issued its AOI for the 2005
grazing season. The 2005 AOI designated the Spring City and
Buttermilk Units as rested units and prohibited all grazing on
the Buttermilk Meadows Unit.
On July 25, 2005, the Forest Service issued a notice of non-
compliance to Buckingham because the District Ranger had
6354 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
observed 42 cow/calf pairs belonging to Buckingham in the
Buttermilk Meadows Unit, where grazing was prohibited.
On August 18, 2005, the Forest Service sent Buckingham
a decision letter regarding his permit compliance. The letter
highlighted the previous notice of non-compliance delivered
to Buckingham on July 25, 2005, which had required him to
remove all his cattle from the Buttermilk Meadows Unit by
July 27, 2005. The letter then informed Buckingham that the
District Ranger had confirmed on two separate inspections,
one on August 12 and another on August 13, that Bucking-
ham still had livestock grazing in the Buttermilk Meadows
Unit. As a result, the District Ranger suspended 25 percent of
Buckingham’s 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 Bucking-
ham that he had “a repeat and ongoing problem” with compli-
ance 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 Allot-
ment, including the Buttermilk Meadows Unit, on September
14, 18, 19, 20, 22, 26, 28, 29, and November 10, 2005. Conse-
quently, 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
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6355
had issued him ten non-compliance letters, three suspensions,
and two partial cancellations. The District Ranger concluded
his letter as follows: “Due to repeated non-compliance with
the terms and conditions of your term grazing permit, it is my
decision to cancel the entire Buttermilk C & H term grazing
permit of 824 cow/calf pairs.”
The Forest Supervisor and the Regional Forester affirmed
the District Ranger’s decision. The Regional Forester’s deci-
sion constituted a final agency action. 36 C.F.R.
§ 251.87(e)(3).
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) Buck-
ingham 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 5
U.S.C. § 558(c) before cancelling Buckingham’s permit; and
(4) the agency’s consideration of Buckingham’s history of
non-compliance in its November 2005 cancellation decision
was not arbitrary or capricious.
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, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). In doing so, the court’s
scope of review “is narrow and a court is not to substitute its
6356 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
However, “the agency must examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice
made.’ ” Id. (quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962)). “In reviewing that explana-
tion, [the court] must consider whether the decision was based
on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Id. (internal quotation
marks omitted). The review of whether an agency’s action
“was arbitrary or capricious is highly deferential, presuming
the agency action to be valid.” Irvine Med. Ctr. v. Thompson,
275 F.3d 823, 830-31 (9th Cir. 2002) (internal quotation
marks omitted).
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 Allot-
ment’s pastures where he had grazing and maintenance obli-
gations. 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 dis-
trict 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 adminis-
trative remedies before bringing suit in federal court. 5 U.S.C.
§ 704.
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6357
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 interven-
tion 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 Ser-
vice. 7 U.S.C. § 6912(e).
There is no bright-line test to determine whether a party has
properly exhausted a claim to the Forest Service; the determi-
nation 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 pre-
cise 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. (empha-
sis added).
Buckingham contends that the district court erred by rely-
ing only upon Idaho Sporting Congress in its exhaustion rul-
ing. 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.
6358 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
[2] In Native Ecosystems Council, we observed that
“claims raised at the administrative appeal and in the federal
complaint must be so similar that the district court can ascer-
tain that the agency was on notice of, and had an opportunity
to consider and decide, the same claims now raised in federal
court.” 304 F.3d at 899 (emphasis added) (internal quotation
marks omitted). The record shows that Buckingham argued to
the Forest Service that other ranchers’ non-compliance with
their permit obligations precluded Buckingham from comply-
ing with his own grazing and maintenance obligations. But
that argument is not “so similar” to Buckingham’s current
argument, which turns solely on his permit’s language rather
than his neighboring ranchers’ conduct, that the Forest Ser-
vice would consider those two arguments to be “the same
claim.” Buckingham has otherwise failed to direct our atten-
tion to any place in the administrative record where he articu-
lated a specific argument related to the permit’s allegedly
vague or deficient description of pasture boundaries.
[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 Ser-
vice.
II. Procedural Due Process
[4] Buckingham next contends that the Forest Service vio-
lated 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.” U.S. Const. amend. V.
To be entitled to procedural due process, a party must show
a liberty or property interest in the benefit for which protec-
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6359
tion is sought. Morrissey v. Brewer, 408 U.S. 471, 481
(1972). If the party establishes that such an interest exists, a
court determines what process was due and whether the party
was actually afforded such process. Id. at 481-82.
Here, the district court held that Buckingham had a pro-
tected 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 prop-
erty 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 termination 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 Buck-
ingham’s livelihood depends, at least in part, upon the right
to graze his livestock on national forest lands. The govern-
ment also has a strong interest in managing livestock permit-
ted to graze in the national forests in order to preserve that
valuable land and its resources. Cattle control is a vital aspect
of protecting that governmental interest. As stated by the For-
est 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
6360 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
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 par-
ticular 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 pro-
cedural 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 con-
front 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 of 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)). Neverthe-
less, procedural due process does not require that the notice
and opportunity to be heard occur before the deprivation. Par-
ratt 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-
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6361
deprivation procedures, Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 547-48 (1985), or be satisfied with post-
deprivation process alone, Brewster, 149 F.3d at 984. Further,
“[d]ue process does not always require an adversarial hear-
ing,” Hickey v. Morris, 722 F.2d 543, 549 (9th Cir. 1984), a
full evidentiary hearing, United States v. Clifford Matley
Family Trust, 354 F.3d 1154, 1162 (9th Cir. 2004), or a for-
mal hearing, Memphis Light, Gas, & Water Div. v. Craft, 436
U.S. 1, 16 n.17 (1978) (“The opportunity for informal consul-
tation with designated personnel empowered to correct a mis-
taken determination constitutes a ‘due process hearing’ in
appropriate circumstances.”); see also id. (“’[A] hearing in its
very essence, demands that he who is entitled to it shall have
the right to support his allegations by argument however brief,
and, if need be, by proof, however informal.’ ” (quoting Lon-
doner v. Denver, 210 U.S. 373, 386 (1908))); Brewster, 149
F.3d at 985 (“The hearing need not even approximate a trial-
like proceeding; in fact, it may be ‘very limited’ and still pass
constitutional muster.” (quoting Gilbert v. Homar, 520 U.S.
924, 929 (1997))). Nor is the opportunity to cross-examine
witnesses mandatory in all cases. See Brock v. Roadway
Express, Inc., 481 U.S. 252, 266 (1987) (“We conclude, how-
ever, that as a general rule the employer’s interest is ade-
quately protected without the right of confrontation and cross-
examination, again so long as the employer is otherwise pro-
vided an opportunity to respond at a meaningful time and in
a meaningful manner.” (internal quotation marks omitted)).
At bottom, the due process evaluation “ ‘is flexible and calls
for such procedural protections as the particular situation
demands.’ ” Mathews, 424 U.S. at 334 (quoting Morrissey,
408 U.S. at 481).
[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 November 2005 cancellation deci-
sion, the Forest Service notified Buckingham in writing of his
permit violations on several occasions. It issued notices of
6362 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
non-compliance to him on July 25, August 18, and September
9, 2005. Each of those notices informed Buckingham of the
basis for the alleged non-compliance, and specified the dates
on which Forest Service personnel had observed his livestock
in an unauthorized pasture, the name of the pasture, and how
many livestock were seen. In addition, those notices provided
Buckingham with the name and contact information of the
Forest Service agent to contact if he had any questions or con-
cerns about the letters. Moreover, Buckingham engaged in
conversations with Forest Service personnel during the 2005
grazing season to discuss compliance issues. Thus, months
before the Forest Service terminated his permit, the Forest
Service gave Buckingham timely notice of the charges against
him, as well as the evidence supporting those charges, and
afforded Buckingham the opportunity to address his concerns
or disagreement with the charges directly to Forest Service
personnel.
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 36
C.F.R. § 251.87(c)(1) and then to the Regional Forester in
accordance with 36 C.F.R. § 251.87(c)(2). In both cases, he
was entitled to present “narrative evidence and argument,”
and a written reply to the agency’s response. See id.
§§ 251.90(a), 251.94(c). Buckingham was also entitled to
present oral argument at the first-level appeal. See id.
§ 251.97.
[8] Buckingham argues that procedures such as an eviden-
tiary hearing and cross-examination were necessary here
because of the many disputed facts involved in his case. Nev-
ertheless, 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 Bucking-
ham, over the course of many years, was able to raise, and did
raise, the same factual disputes before the Forest Service that
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6363
he raises now on appeal. The Forest Service considered
whether those matters excused Buckingham’s serial non-
compliance, and concluded they did not. For example, in the
Forest Supervisor’s April 2005 decision upholding the Dis-
trict Ranger’s partial cancellation decision, the Forest Super-
visor acknowledged Buckingham’s proffered explanations for
his non-compliance (e.g., gates being left open, neighboring
permittees causing the misplacement of his cattle), and deter-
mined these explanations lacked credibility.
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 permit-
ted his cattle to drift into the unauthorized pasture, the
Regional Forester noted that the neighboring permittee had
repaired that fence but that Buckingham’s non-compliance
persisted. Therefore, it is apparent from the record that Buck-
ingham 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 con-
sider, 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 suffi-
cient 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 par-
ticipated 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-
6364 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
ted to give oral argument at his first level of administrative
appeal, and was permitted to present written arguments and
evidence on his own behalf at both the first and second level
of administrative appeal. Viewing all the opportunities given
Buckingham, we cannot conclude that the Forest Service
deprived him of the opportunity to be heard at a meaningful
time and in a meaningful manner. Brewster, 149 F.3d at 984;
see also Clouser v. Espy, 42 F.3d 1522, 1540-41 (9th Cir.
1994) (holding due process did not require the Forest Service
to conduct an evidentiary hearing, at either the initial decision
stage or at the administrative appeal stage, in connection with
refusing miners’ motorized access to their mining claims
located on national forest land).1
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, 5
U.S.C. § 558(c). Section 558(c) provides:
Except in cases of willfulness or those in which pub-
lic 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
Buckingham cites 43 C.F.R. §§ 4160.4 and § 4.470 for the proposition
that the Bureau of Land Management (BLM) furnishes the exact type of
evidentiary hearings in connection with grazing permit decisions that
Buckingham contends the Forest Service should have provided him. Those
regulations, however, provide for no such hearing. They merely provide
that a permittee who is adversely affected by a final BLM grazing decision
may appeal the decision to an administrative law judge, id. § 4.470(a), and
state that in the event that the Office of Hearings and Appeals stays all or
part of a grazing decision that cancels or suspends a permit, the BLM will
continue to authorize grazing under the permit that was in effect immedi-
ately before its decision until the appeal is resolved, id. § 4160.4.
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6365
(1) notice by the agency in writing of the facts or
conduct which may warrant the action; and
(2) opportunity to demonstrate or achieve compli-
ance with all lawful requirements.
5 U.S.C. § 558(c).
The parties agree that Buckingham’s grazing permit quali-
fies as a license for purposes of § 558(c). The dispute 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 con-
sideration 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 underly-
ing 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 “li-
cense” on November 18, 2005. Thus, the 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 Buck-
ingham three letters of non-compliance: one on July 25, one
on August 18, and one on September 9. All three letters pin-
pointed the section of the disputed grazing permit that he vio-
lated 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.
6366 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
Buckingham had ample time to correct the violations; moving
his livestock from the wrong unit could have been easily rem-
edied in a matter of days, or less.
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 let-
ter to serve as both a notice of non-compliance and a decision
letter regarding the same non-compliance. Under such cir-
cumstances, 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 deci-
sion by the Forest Service. It merely informed Buckingham
that his livestock were discovered grazing in a restricted pas-
ture and instructed him that he needed to comply with his per-
mit. 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
2
When the Forest Service issued its November 18, 2005, decision, that
cancellation decision mooted the August 18, 2005, suspension.
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6367
Buckingham prefers to characterize the August 12 and 13
violations as new violations that renewed the Forest Service’s
obligations under § 558(c), requiring the Forest Service to
give Buckingham a new opportunity to achieve compliance
with those specific violations. Buckingham’s position over-
looks the background against which the August 12 and 13
violations transpired, namely the violations documented on
July 23. Those August 12 and 13 violations were not commit-
ted by a permittee who had never dealt with the Forest Ser-
vice. Because of Buckingham’s prior violations in July, the
August 12 and 13 violations served as evidence of Bucking-
ham’s failure to comply with the same terms of his permit for
which he was cited in the July 25 letter.
If Buckingham’s approach were adopted, it is difficult to
see how the Forest Service, after documenting one permit vio-
lation, would ever be able to actually render an adverse deci-
sion related to a grazing permit, because each new violation
would restart the clock for the permittee to comply. The pur-
pose of § 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 “For-
est 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 permit-
tee, 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 condi-
tions.”).
[12] Buckingham presents the identical argument in attack-
ing the November 18, 2005, letter. He argues it served as a
6368 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
notice of non-compliance and a decision letter, like the letter
in Anchustegui. Although the letter cited a number of new
violations taking place in September 2005, those violations
served as evidence, once again, of Buckingham’s failure to
keep his livestock out of unauthorized pastures, such as the
Buttermilk Meadows Unit. These new violations did not
relate to entirely new terms of his permit, but were based
upon previous violations of which the Forest Service had noti-
fied him repeatedly since July 2005. Cf. FSH 2209.13, Sec-
tion 16.36 (“[I]f the permittee violates a different term and
condition than the one referenced in the first Notice, the
authorized officer should issue another Notice to address this
new violation.”). In sum, we conclude that the July 25 letter
provided Buckingham with an opportunity to achieve compli-
ance or to demonstrate that he had achieved compliance
before the Forest Service instituted agency proceedings
against him with its subsequent permit suspension and cancel-
lation decisions.
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 consider-
ing any violations that occurred before his 2005 grazing per-
mit issued. According to Buckingham, “[i]ssues of
compliance within any preceding permit period cannot form
the basis 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 16 U.S.C. § 551.
To that end, the Forest Service has “broad authority” to issue
grazing permits. Forest Guardians v. U.S. Forest Serv., 329
F.3d 1089, 1097 (9th Cir. 2003) (citing 36 C.F.R. § 222.3). It
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6369
also has broad authority to cancel or suspend a grazing permit
if a permittee does not comply with the provisions and
requirements of that permit or governing regulations. See 36
C.F.R. § 222.4(a)(4). That authority was spelled out for Buck-
ingham in the very language of the 2005 grazing permit he
signed.
[14] For years, the Forest Service exercised exceptional
restraint in dealing with Buckingham. After his repeated fail-
ures to comply with the terms of his grazing permit, despite
numerous warnings and sanctions, the Forest Service deter-
mined that “enough was enough” and that complete termina-
tion 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 discre-
tion.” 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 cancel-
lation 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 con-
sidered in determining” repeat offenses, including offenses
from previous grazing seasons. Id. Although some of Buck-
ingham’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 author-
ity to deem complete cancellation to be the appropriate sanc-
tion, and its ultimate decision to do so was not arbitrary or
6370 BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE
capricious. See 36 C.F.R. § 222.4(a)(4) (“The Chief, Forest
Service, is authorized to cancel, modify, or suspend grazing
and livestock use permits in whole or in part . . . if the permit-
tee does not comply with provisions and requirements in the
grazing permit or the regulations of the Secretary of Agricul-
ture on which the permit is based.”) (emphasis added); FSH
2209.13 (1992), Section 16.23 (“Suspension or cancellation is
warranted if permittee livestock graze . . . on lands outside the
permitted area[.]”).
Buckingham responds with a citation to 36 C.F.R. § 222.3.
That regulation states in relevant part: “A term permit holder
has first priority for receipt of a new permit at the end of the
term period provided he has fully complied with the terms and
conditions of the expiring permit.” Id. § 222.3(c)(1)(ii). He
construes this regulation to mean that when the Forest Service
issued him his grazing permit in May 2005, it necessarily
determined that Buckingham had “fully complied” with the
terms of his previous permits, mooting any past violations he
may have had under those prior permits.
[15] Buckingham’s response is creative but unpersuasive.
In May 2005, the Forest Service did not issue him a “new per-
mit.” 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. Fur-
ther, 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 per-
mit. Buckingham cannot reasonably argue that the Forest Ser-
vice’s issuance of the 2005 permit was a tacit approval of his
compliance with his 1999 permit.
3
The 1999 permit and the 2005 permit both expired on December, 31,
2008.
BUCKINGHAM v. SEC. OF U.S. DEP’T AGRICULTURE 6371
Moreover, Buckingham concedes that the Forest Service
could consider his violations of the 2005 permit in deciding
to suspend or cancel his 2005 permit. Buckingham’s repeated
violations of the 2005 permit alone were serious. His 2005
permit was issued in May 2005. As soon as July 2005, the
Forest Service had to send him another notice of non-
compliance for having 42 head of livestock in the Buttermilk
Meadows Unit. Forest Service personnel later observed Buck-
ingham’s livestock in unauthorized pastures on August 12, 13,
23, and 25, triggering the notices that issued on August 18
and September 9, 2005. Then, Forest Service personnel
reported Buckingham’s livestock in unauthorized pastures on
September 14, 18, 19, 20, 22, 26, 28, and 29. Based on the
violations occurring in the 2005 grazing season alone, the
Forest Service had a reasonable basis for cancelling Bucking-
ham’s 2005 permit.
CONCLUSION
We hold that the Forest Service did not act arbitrarily or
capriciously in deciding to cancel Buckingham’s grazing per-
mit, and that in doing so, it provided Buckingham the proce-
dures he was due under both the Fifth Amendment and the
APA.
AFFIRMED.