[00:00:43] Speaker 03:
Our final case for argument this morning is Perkins against Department of Agriculture. Ms. Betancourt.

[00:00:50] Speaker 00:
Good morning, Your Honors. May it please the Court. I am Danielle Betancourt, and I'm here on behalf of the appellant, Ms. Silky Perkins.

[00:00:58] Speaker 00:
Here we are on an appeal on a case involving the United States Forest Service cancellation of her 2016 term grazing permit for alleged unauthorized grazing of livestock on federal lands outside her terms of her permit.

[00:01:14] Speaker 00:
Before I get into the meat of some of that argument, I think one of the issues that has to be addressed first and what was raised by the appellees in this case was whether, in fact, this case has now become moot and whether this court has jurisdiction because the terms of the permit have expired dated December 31st of 2025.

[00:01:36] Speaker 00:
As an initial argument, we have raised that we believe that 10-year term permit should have been going on into this year and not have concluded until December of 2026. We do understand that in the actual permit itself, the date does state December 31st, 2025. However, by statute and regulations at 43 U.S. Code Section 1752A, it does state that grazing permits shall be for a term of 10 years.

[00:02:06] Speaker 00:
The same type of language is in the regulations at 36 CFR.

[00:02:10] Speaker 04:
And so you think that that gives you an additional couple of months because it was signed in what? It was signed in December or was it April?

[00:02:18] Speaker 00:
The permit from 2016 was signed in December of 2016, December 20th, 2016.

[00:02:25] Speaker 04:
And so you think that she gets until that date?

[00:02:29] Speaker 00:
Correct.

[00:02:31] Speaker 00:
Ten years later, 2026, in terms of a 10-year permit.

[00:02:37] Speaker 04:
As I read the regulations, it looks like the regulations contemplate that even if a permit has been terminated by time, that if the Forest Service hasn't gotten around to renewing it, that there is a presumption of continuation until the Forest Service completes the need and sort of puts the burden on the Forest Service to get that right. Why isn't that the stronger argument for your mootness rather than that? that the Forest Service has somehow made a scrivener's error and that you're entitled to additional time?

[00:03:07] Speaker 00:
Your Honor, I do believe that is our stronger argument, and we did make that in briefing as well. I just wanted to hit this initial one first to put the point to the fact that she believed that it didn't expire until 2026, and it kind of was consistent with the fact that her prior permit wouldn't have expired before she signed this 2016 permit either. Do you know, I mean, I don't know,

[00:03:32] Speaker 03:
I mentioned this is not in the record, but have they given the permit to somebody else, as far as you know?

[00:03:39] Speaker 00:
It is not in the record, and as far as I know, they have not. But I have not seen anything indicating otherwise. I think they haven't let us know.

[00:03:50] Speaker 03:
And I take it you're under, I guess it's 1752C1. If the permit had simply expired rather than having been revoked as it was here, you would have priority for renewal. Is that right? Yeah.

[00:04:08] Speaker 00:
That's correct. So our other argument, aside from whether we go by the term and the date written in the actual permit, is the fact that this court can still grant some type of relief to Ms. Perkins.

[00:04:20] Speaker 00:
Whether it is that the permit had expired in 2025, the fact is that there is a statutory right to renewal and also first priority for that renewal for a current permittee under the statute.

[00:04:34] Speaker 00:
As well as the fact that, as Your Honor was indicating, part of that section also allows for your prior terms and conditions to continue on while an environmental assessment is completed through the process to get your new permit, depending on whether new terms and conditions are issued or whether you remain under the same terms and conditions. So our argument is obviously the fact that this case isn't moot. You can still grant effective relief if you determine that the cancellation decision was arbitrary and capricious.

[00:05:06] Speaker 00:
You can set it aside, and that would wipe the slate clean for Ms. Perkins, and she would fall within that requirement under 43 U.S. Code 1752 that the lands are available for grazing, that she's in compliance with the permit in terms and conditions and the rules and regulations, and then all she would have to do is accept the new terms for the permit in order to be given first priority for receipt of that grazing permit.

[00:05:35] Speaker 00:
I also wanted just to address some of the additional case law that was cited out in the Tenth Circuit regarding grazing permit expirations becoming moot. This would be the McKean v. U.S. Forest Service, as well as Wallace v. Bureau of Land Management.

[00:05:52] Speaker 00:
I think they're distinguishable from our case on the basis that while those grazing permits had expired, the difference was, in fact, that the Permittees had received new grazing permits were under additional terms and conditions as opposed to in our case where Miss Perkins currently does not qualify for a new permit due to it being canceled for noncompliance.

[00:06:22] Speaker 00:
After addressing the mootness, I would like to direct to the rest of our argument in terms of why this decision should be set aside as arbitrary and capricious and not based on a rational explanation.

[00:06:34] Speaker 00:
I think in the large part, both the Forest Service decision as well as the lower court's decision focused a lot on the alleged unauthorized grazing of Mr. Jerry Voshnik, who is Ms. Perkins' son.

[00:06:47] Speaker 00:
He has his own herd of cattle. He operates his own business separate from Miss Perkins. However, in a few of the past seasons, in terms of when they were grazing, it's been a few years, but back in 2021 specifically, he was allowed to graze under Miss Perkins permit through an annual operating instruction.

[00:07:10] Speaker 00:
And that authorization was temporary in the sense that it only allowed for two months.

[00:07:17] Speaker 00:
Um, per the terms of the permit of Ms. Perkins, she is only allowed to let livestock owned by her to graze on her allotment, um, unless otherwise approved by the forest service. And then she's further required to make sure anything, any couch is owned or controlled, um, stay out of unpermitted areas. However, The U.S. Forest Service is arguing that that temporary authorization of allowing to have his cattle under her permit to help her with the grazing operations, that now somehow he was attached to her permit for the entire grazing year, so the entire 12 months.

[00:07:53] Speaker 00:
I don't find that there's anything in the statutes, regulations, or otherwise that would allow for this to occur.

[00:07:59] Speaker 00:
More specifically, annual operating instructions aren't even statutorily or regulatory required.

[00:08:05] Speaker 00:
They are something that are done to help allow for temporary changes in the number and kind of class of livestock and your grazing management, as well as seasons of use, and also to help implement your allotment management plan and your actual grazing permit.

[00:08:20] Speaker 00:
But nothing in any of that type of, whether it's the Forest Service handbooks or any of regulations or otherwise, insinuate that an AOI has some broader impact on your permit than that.

[00:08:32] Speaker 03:
So even if we...

[00:08:35] Speaker 03:
even if we disregard for a moment all of his cattle and say that they're not attributable to Ms. Perkins, the agency pointed to some evidence that her cattle were involved, both with the, and I'm thinking specifically of the photographs of some of the cattle at Verde River and then the visitor logs from the cement plant that suggested that she was coming and collecting them.

[00:09:03] Speaker 03:
So what, maybe you can address those pieces of evidence.

[00:09:08] Speaker 00:
Yeah, I think one of the major issues was the fact that that was never raised even before we got in front of the administrative appellate court. It was raised during the oral argument at that level that they did capture photographs or allegedly photographs of Ms. Perkins' cattle. She has long taken the position that her cattle were not with Jerry's cattle at the time, and that the two that were captured on some game cameras, that she had gifted them to Jerry back when he was younger, and he just never rebranded them.

[00:09:46] Speaker 00:
I don't know how else to raise the argument, asides from what Ms. Perkins is claiming.

[00:09:52] Speaker 04:
How do you address the evidence at the cement plant?

[00:09:56] Speaker 04:
The cement plant calls and says, your cows are over here. Some of them appear to be Jerry's. Some of them appear to be hers. And her names show up in the logs.

[00:10:06] Speaker 04:
And some of her people show up in the logs. And so how do we address that?

[00:10:12] Speaker 00:
I think I would address it first in the fact that generally with the logs themselves, one, Ms. Perkins has denied that the cement plant was calling or telling her cattle were in their private property.

[00:10:24] Speaker 00:
Two, her cattle were in, we produced evidence showing that her cattle were in a completely different location, private property not even close to the cement plant property.

[00:10:35] Speaker 04:
And you were able to prove that all of her cattle, that all of her herd was there?

[00:10:41] Speaker 04:
None of her herd had wandered over here?

[00:10:43] Speaker 00:
That's correct.

[00:10:43] Speaker 04:
The people at the cement plant said they called her and that somebody from her group, either her personally or somebody else, would come over and pick up the cattle.

[00:10:53] Speaker 00:
Miss Perkins doesn't have any employees, Your Honor. The only one that has helped her in the past is Mr. Vosnick, her son. But he does have his own herd and his own operations, and they're not a part of her operations. They're completely separate and distinct.

[00:11:08] Speaker 00:
What we have in the record is earlier when they talked to somebody from the cement plant factory was that they had called Jerry. not that they were calling Silky. When he was then interviewed by a law enforcement officer with the Forest Service, they stated that they called both when issues arose. But Ms. Perkins has indicated she never received a phone call.

[00:11:29] Speaker 04:
And what did the logs say?

[00:11:31] Speaker 00:
The logs identify various, they say Perkins or Perkins' hands or Cruz or Mr. Wozniak or his father, who is not married to Ms. Perkins any longer or hasn't been at that time.

[00:11:49] Speaker 00:
I DON'T THEY DON'T GIVE YOU ANY MORE INFORMATION THAN THAT AND THAT IS NOT ANYBODY THAT IS NOT THEM SIGNING AND IT'S SOMEBODY ELSE WHO'S WRITING THAT INFORMATION DOWN THEY'RE NOT THE ONES WHO PHYSICALLY SIGNED THEM IN EVEN THE VICE PRESIDENT AT THE PHOENIX CEMENT PLANT SAID THAT THAT DOESN'T CLEARLY SHOW THAT MISS PERKINS WAS ACTUALLY THE PERSON WHO WAS GOING AND THROUGH THERE BECAUSE THEY'RE TRYING THE CASE WE'RE HERE ON A APPELLATE REVIEW UNDER

[00:12:15] Speaker 02:
not arbitration, arbitration is on the line, capricious, arbitrary and capricious standard. And you can contest the factual findings and you say, well, they shouldn't have, you know, the cement plant notations were incorrect and, but it was evidence that it seems to me it was not irrational for someone to conclude that there was cattle appropriately attributed to her found raising where they weren't supposed to be.

[00:12:50] Speaker 02:
That was the basis for the action.

[00:12:53] Speaker 02:
At this stage of the game, to say, well, that decision was wrong because she didn't have any hired hands or somebody at the cement plant must have made an erroneous understanding or noted something down wrong, I mean, that really is kind of, missing the point for what we're doing here today, I think. Where am I wrong about that?

[00:13:20] Speaker 00:
I think what we're arguing, Your Honor, is not just the facts alone, is the fact that there is not substantial evidence in the record or a reasonable explanation.

[00:13:31] Speaker 02:
But to reach that conclusion, we have to discount the evidence that was cited and has to get to the point of deciding, well, the cement plant notation was incorrect. But I don't know that that's something we're in a position to do.

[00:13:45] Speaker 02:
We're not the trier of fact.

[00:13:49] Speaker 02:
So, I'm sympathetic toward the situation, but I don't know that this is the place where we can take up the kind of questions you'd like to take up.

[00:13:58] Speaker 00:
Ms. And I appreciate that, Your Honor. And I do, would also argue under the Administrative Procedure Act at all levels, it's a de novo review where you can look at everything, including the facts in the case.

[00:14:13] Speaker 02:
Well, we can look at everything, but the standard is not de novo. We're not the decider in the first instance. We're deciding based on a pretty deferential standard.

[00:14:29] Speaker 03:
Did you want to reserve the remainder of your time?

[00:14:31] Speaker 00:
Yes, can I reserve that remaining time? Thank you.

[00:14:39] Speaker 03:
Mr. Capps.

[00:14:42] Speaker 01:
Good morning. May it please the Court. My name is Noel Capps. I'm in AUSA in Phoenix. I will be presenting on behalf of the government.

[00:14:51] Speaker 04:
You'll have to speak up just a little bit, counsel, so we can hear you.

[00:14:54] Speaker 01:
Yes, Your Honor.

[00:14:55] Speaker 01:
This case and appeal became moot upon the expiration of the subject term grazing permit by its plain terms on December 31st, 2025. The requested revocation and enjoyment of the cancellation decision would afford no effective relief because Ms. Perkins' right to graze expired when the permit expired. There is no present live controversy.

[00:15:25] Speaker 01:
The arguments raised against mootness are both procedurally and substantively deficient.

[00:15:34] Speaker 01:
Procedurally, they're deficient because each states a new claim that was not raised before and exhausted below.

[00:15:44] Speaker 01:
For example, the alleged scrivener's error is a new claim seeking to modify the permit, a contract, to add an additional year to the expiration of the permit, the permit term that is 180 degrees from the express terms of the permit itself, which facially stated December 31st, 2025.

[00:16:11] Speaker 02:
I'm not sure that's something that, I mean, you can call it a scrivener's error, but basically we've got this agreement. And I recently entered into a lease agreement that actually had the wrong unit number down. And we all understood it was the wrong unit number. And so I think the question here is, okay, we've got this agreement. Is that a plausible interpretation? Whether it is or it isn't and so forth, it's something on the table that suggests that maybe This isn't an entirely closed controversy.

[00:16:41] Speaker 01:
Mr. The agency's position is that there is no ambiguity here. Term grazing permits are issued, shall be issued for a term of 10 years, not more. The argument that would put it out to the end of this year would violate statute and regulation by making the term of the permit in excess of 10 years.

[00:17:06] Speaker 02:
Mr. See, that's an argument you can make.

[00:17:09] Speaker 02:
defining the controversy as moot right from the get-go, I have more difficulty with. And we have the additional factor that was discussed when your colleague was at the lectern as to whether there's an understanding or an expectation that if you've had a permit and it expires in normal course, you've got a lead on getting a permit for the same territory thereafter.

[00:17:38] Speaker 02:
And why wouldn't that be a basis to make this a law of controversy?

[00:17:42] Speaker 01:
Substantively, and with all due respect to my colleague, the agency's position is that view is wrong.

[00:17:50] Speaker 01:
By statute and regulation, that right of an existing permittee to first priority for issuance of a new permit is conditional. It's not automatic. It's conditional upon that permittee being in full compliance with all terms and conditions of the Parliament.

[00:18:08] Speaker 04:
But isn't that a little circular for us, counsel?

[00:18:12] Speaker 04:
We're here today to try to figure out whether the determination that she was not in full compliance with the rules and regulations is arbitrary and capricious.

[00:18:21] Speaker 04:
And that's a very narrow standard, Your Honor. It is, but then we should be arguing about whether it's arbitrary and capricious, not arguing about whether it's moot, because the whole thing feels quite circular.

[00:18:32] Speaker 01:
Bottom line as to mootness, the agency's position is set forth in its briefing.

[00:18:38] Speaker 01:
I would also add that to the extent that the court is troubled by the ambiguity, to the extent that the court views there's ambiguity around either of the issues that are raised for it, against mootness, that that would be, frankly, all the more reason to dismiss on grounds of mootness because we're here on an incomplete record.

[00:19:01] Speaker 03:
It's...

[00:19:03] Speaker 03:
complete the point on the 1752 priority.

[00:19:10] Speaker 03:
Is there any reason that she wouldn't be entitled to that, other than the determination by the agency that is under review here?

[00:19:18] Speaker 01:
Mr. Procedurally, if the cancellation decision were revoked, it does not undo the past noncompliance or historical noncompliance. She would have to submit a new permit And in that new application, she would have to submit a new application.

[00:19:37] Speaker 01:
And in that application process, agency practice is that the reviewing officer would look at among a lot of different factors, but including compliance history. And while compliance history is not determinative, if the officer reviewing that application for a new permit deemed that the permit compliance history was unsatisfactory by agency practice, that permit, that new permit, can't be issued.

[00:20:04] Speaker 03:
But do you, I mean, is there a reasonable possibility that the compliant or that the officer making that decision would reach a different conclusion in the case of somebody whose permit had been revoked? You know, if we were to because of the action at issue here, than someone who's hadn't, but had whatever other things in the past there are?

[00:20:30] Speaker 01:
Well, to be clear, I'm not suggesting... Might it make a difference? I'm not suggesting any predetermination or forecasting.

[00:20:40] Speaker 03:
Well, that's fair, but the problem is that if there is some, you know, realistic possibility that the decision in this case would make a difference to what the parties, you know, future rights are, then it's not moot, right?

[00:20:58] Speaker 03:
And I'm not, I'm not, it seems like you're, I mean, I appreciate, like, that you're being, you know, careful in not saying what the agency would or would not do. But if you can't tell us that, you know, no matter what happens here, she's not getting another permit, then it seems like this case might make a difference, and then that means it's not moot.

[00:21:19] Speaker 02:
All I'm suggesting- Can we get to the merits?

[00:21:24] Speaker 01:
Your Honor, yes.

[00:21:26] Speaker 01:
Moving on to the merits.

[00:21:29] Speaker 01:
The district court's judgment should be affirmed because it properly found that the cancellation decision was lawful and based upon substantial evidence.

[00:21:46] Speaker 01:
With respect to that part of the cancellation decision focusing on the prior Verde River Corridor violations, the cancellation decision was the culmination of a years-long effort to work with the permittee to to get her into compliance and get her to stay in compliance through progressive permit actions. Unfortunately, that simply did not happen. And at the relevant time, plaintiff was already under a 25 percent suspension decision as of March 31st, 2021, because of a frequent recurring pattern of noncompliance by having cattle under her permit being found in the Verde River Quarter.

[00:22:35] Speaker 01:
THIS IS SOMETHING THAT REPEATS ITSELF WITH RESPECT TO THE SUBJECT NOTICE OF NONCOMPLIANCE LEADING TO THE SUBJECT CANCELLATION DECISION WHEN, AGAIN, ON MULTIPLE OCCASIONS, ALTHOUGH BY UNDER THE PERMIT AND THE ANNUAL OPERATING INSTRUCTION, SHE WAS NOT TO HAVE ANY CATTLE ON FORCE SERVICE LANDS AFTER APRIL 30TH OF 2021, HER CATTLE WERE DOCUMENTED OR OTHERWISE DETERMINED TO BE, BASED UPON SUBSTANTIAL EVIDENCE, ON National Forest Service-administered property beginning on or about May 18th, 2021 through middle of December of 2021.

[00:23:10] Speaker 01:
And with respect to the Jerome allotment, which had been closed to grazing since 2008, there was strong circumstantial evidence that plaintiff and cattle under her permit were involved with substantial unauthorized grazing on the northern portion of the Jerome allotment sometime between mid-April of 2021 and mid-September of 2021.

[00:23:42] Speaker 01:
With respect to the types of evidence supporting the underlying decision, I would point the court to the responsive statement to the appeal and the oral presentation outline that are part of the record, 2ER 47 to 87, and also 2ER 158 to 189. I would also point to the Court that when the Notice of Noncompliance was issued in February of 2022, Ms.

[00:24:19] Speaker 01:
Perkins was given an opportunity to provide substantive response And she did, but it was not substantive. It was incomplete. And it came in two parts. It came on March 3rd, and it came on March 17th. And for the remaining approximately six months, up until the time the cancellation decision was issued on August 8th of 2022, no additional information was provided for the agency's consideration.

[00:24:50] Speaker 01:
So what the agency had in front of it was the evidence of the substantial grazing of Jerome Allotment. It had in front of it the substantial evidence of the unauthorized grazing on the Verde River Corridor, including photographs of plaintiff's cattle, documented once on July 2nd of 2021 and a second time on November 3rd of 2021.

[00:25:17] Speaker 03:
She says that those were cattle that had been transferred to her son. So what...

[00:25:25] Speaker 01:
What do you say to that? Well, those arguments were never brought to the agency's attention. But during the administrative appeal process, they were. And the agency just didn't simply disregard it. They looked at it and made a determination that those, first, it's not disputed that the cattle bore her brand.

[00:25:45] Speaker 01:
Second, under Arizona statute, they're deemed to be under the ownership of the brand that they bear. and that the permit required expressly that the permittee immediately notify the agency if there was any change at all in the ownership status of the cattle.

[00:26:06] Speaker 01:
That never occurred, and for that reason, even were the court to accept the argument that the Vajinik cattle were not under the permit, or in addition to that, that the plaintiff gifted these cattle at some unknown time in the past, we are still left with a significant permit violation under Part 2 of the permit, again requiring that the permittee immediately notify the agency of a change in brand ownership.

[00:26:45] Speaker 01:
So there's still noncompliance and significant noncompliance that led to well-documented impacts of grazing on federal property that should not have occurred and were in contravention to the express terms of the permit.

[00:27:16] Speaker 02:
I'm sure it's not in the record, but do you know The land in question or how it's being used now? Has a new permit been issued?

[00:27:26] Speaker 01:
A new permit has not been issued.

[00:27:32] Speaker 01:
And with that, Your Honor, I'm happy to answer any other questions. It appears there are none. But the agency would respectfully request that the appeal be dismissed on mootness grounds or alternatively that the judgment of the district court be affirmed. Thank you. Thank you.

[00:27:55] Speaker 00:
Thank you, Your Honor.

[00:27:58] Speaker 00:
I think I would just want to follow up on a few points in terms of that, one, that Ms. Perkins didn't respond when she first received the notice of noncompliance.

[00:28:06] Speaker 00:
You know, he does admit that she did respond, but it wasn't what they wanted. But quite clearly, she's denied that those cattle were ever her responsibility or that that was her cattle, in fact, doing the unauthorized grazing. That was her response. Her response of not being able to give more information in regards to what was happening on the Jerome allotment next to the cement plant factory has long been the position was because she was not involved at all. She was not there. She was not letting her cattle be grazing on the Jerome allotment.

[00:28:37] Speaker 00:
And quite frankly, we believe the visitor logs aren't conclusive of that, nor do they support a reasonable explanation that that was, in fact, her that was... was involved in those situations or that unauthorized grazing.

[00:28:51] Speaker 00:
My time is short, but the only other thing I would have to point out, too, in terms of the brand issue, case law out of Arizona also recognizes that the brand is not conclusive proof that ownership or proof thereof can be made in no other way, but that it can be made in other ways aside from just having the brand. With that, I would ask that this court set aside the agency's decision and find in favor of the appellant. Thank you.

[00:29:15] Speaker 03:
Thank you, counsel. And we thank both counsel for their helpful arguments. The case is submitted and we are adjourned.