Tuesday, July 20, 2010

Rancher loses grazing appeal

WINNEMUCCA — A Paradise Valley rancher seeking judicial review of actions taken by the government in canceling his grazing permits lost his five-year battle when the 9th Circuit Court of Appeals sided with the US Forest Service.

Kenneth Buckingham’s grazing permits were cancelled in 2005 for non-compliance primarily because the rancher repeatedly grazed his cows in restricted allotments.

In the appeal Buckingham argued the forest service did not provide clearly defined allotment boundaries with either a description or a map, failed to give him notice to achieve compliance, unfairly used Buckingham’s previous record of non-compliance when considering new violations, and generally violated his right to due process under the US Constitution.

Buckingham was issued the grazing permit on May 26, 2005. On July 25 the USFS issued a notice of non-compliance because Buckingham’s cattle were observed on an allotment restricted from cattle grazing. On August 18 he received notice of non-compliance and a decision notice informing him that 25 percent of his grazing permit was being suspended for non-compliance with the terms of his grazing permit -- again for having cows in restricted areas..

On Sept. 9 he received another non-compliance notice for having failed to maintain a fence on the allotment as was required AND for having cows in restricted areas. On Nov. 18 the USFS cancelled Buckingham’s grazing permit altogether.

In the appeal Buckingham made two primary arguments: 1) that he was not given sufficient notice in order to bring his operation into compliance, and 2) he had no authority to fix the fence in question.

As an example of the time issue, Buckingham noted a non-compliance letter was sent on July 25 in which he was given until July 27 to remove all his cows from the restricted area. Interestingly, he alleged he did not receive the notice until July 30.

As for the fence the USFS claimed was not maintained, which allowed cows to wander freely into restricted areas, Buckingham claimed that fence was not his to repair. That portion of fencing was the responsibility of another rancher and he (Buckingham) could not get the authority to fix it. He further alleged portions of the fence were destroyed by the USFS themselves during a controlled burn.

Attorneys for the USFS counter-argued each notice was not a new violation but rather was the same violation that was never corrected. They further allege while Buckingham was given until July 27 to have his cows off the restricted allotment, they did not actually inspect until Aug. 12 & 13 – at which time Buckingham’s cows were still in the restricted area. The Forest Service alleges the cows were still on the restricted area on an Aug. 23 & 25 inspection.

On Sept. 9 Buckingham was issued another non-compliance notice, warned about a repeated problem with non-compliance, and advised to have his cows off the restricted area immediately.

Despite this, the USFS said Buckingham’s cows were observed on restricted allotments during inspections on Sept. 14, 18, 19, 20, 22, 26, 28, 29, and Nov. 10. On Nov. 18 Buckingham’s grazing permit was cancelled in its entirety.

In siding with the USFS, the district court noted, “For years, the Forest Service exercised exceptional restraint in dealing with Buckingham.” The court noted Buckingham’s history of non-compliance was relevant to the permit cancellation because the Forest Service understands such an action is a severe sanction; therefore, they approach such a move with caution.

The court noted, “Buckingham was not first-time offender.”

They went on to note because of his history the decision to cancel his grazing permit was neither arbitrary or capricious.

The court did not address the issue of the disputed fence.

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