NO. 15-15620 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________ NEVADA ASSOCIATION OF COUNTIES, et al. Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants-Appellees, and LAURA LEIGH et al. Defendant Intervenors-Appellees. ____________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA CASE NO. 3:13-CV-00712-MMD-WGC | THE HON. MIRANDA M. DU ____________ ANSWERING BRIEF FOR THE FEDERAL DEFENDANTS-APPELLEES ____________ JOHN C. CRUDEN Assistant Attorney General ANDREW C. MERGEN Of Counsel: ELIZABETH ANN PETERSON NANCY ZAHEDI TRAVIS ANNATOYN Office of the Regional Solicitor ANNA T. KATSELAS U.S. Dep’t of the Interior Attorneys U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, D.C. 20044 Phone: (202) 514-2772 Fax: (202) 353-1873 Email: [email protected]Case: 15-15620, 02/12/2016, ID: 9864214, DktEntry: 28, Page 1 of 56
Transcript
NO. 15-15620
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
____________
NEVADA ASSOCIATION OF COUNTIES, et al. Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants-Appellees,
and
LAURA LEIGH et al.
Defendant Intervenors-Appellees. ____________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA
CASE NO. 3:13-CV-00712-MMD-WGC | THE HON. MIRANDA M. DU ____________
ANSWERING BRIEF FOR THE FEDERAL DEFENDANTS-APPELLEES
____________
JOHN C. CRUDEN Assistant Attorney General
ANDREW C. MERGEN Of Counsel: ELIZABETH ANN PETERSON NANCY ZAHEDI TRAVIS ANNATOYN Office of the Regional Solicitor ANNA T. KATSELAS U.S. Dep’t of the Interior Attorneys
U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, D.C. 20044 Phone: (202) 514-2772 Fax: (202) 353-1873 Email: [email protected]
INTRODUCTION .................................................................................................................. 1 STATEMENT OF JURISDICTION ................................................................................... 2 STATEMENT OF THE ISSUES .......................................................................................... 3 STATEMENT OF THE CASE ............................................................................................. 4
I. Legal Framework ............................................................................................... 4 A. The Federal Land Policy and Management Act ................................ 4
B. The Wild Free-Roaming Horses and Burros Act ............................. 4
C. The Administrative Procedure Act ..................................................... 7
II. Recent Management of Wild Horses in Nevada ........................................... 8
III. Proceedings Below ........................................................................................... 10
SUMMARY OF THE ARGUMENT ................................................................................. 13 STANDARD OF REVIEW ................................................................................................. 15 ARGUMENT .......................................................................................................................... 17
I. NACO’s Lawsuit is a Non-Justiciable Programmatic Challenge ............. 17 A. NACO’s First Amended Complaint Does Not Challenge Any
Final Agency Action ............................................................................ 24
B. NACO’s First Amended Complaint Does Not Seek to Compel Any Discrete Agency Action that BLM was Required to Take .... 28
II. The Judgment May be Affirmed on the Alternative Ground that NACO
Failed to State a Claim On Which Relief Can Be Granted ....................... 35
III. NACO has Waived its Purported Challenges to the Dismissal of its Due Process Claim and to the Dismissal with Prejudice ................................... 39
CONCLUSION ...................................................................................................................... 42 STATEMENT OF RELATED CASES ................................................................................ i CERTIFICATE OF COMPLIANCE ................................................................................... ii CERTIFICATE OF SERVICE ............................................................................................. iii
San Luis Unit Producers v. United States, 709 F.3d 798 (9th Cir. 2013) ...................................................................................... 38 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035 (9th Cir. 2010) .................................................................................... 17 Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. 1987) ................................................................................... 32 The Wilderness Soc’y v. Norton, 434 F.3d 584 (D.C. Cir. 2006) ................................................................................... 34 Thornhill Publ’g Co. v. General Telephone Electronics, 594 F.2d 730 (9th Cir. 1979) ......................................................................... 15, 16, 36 United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984 (9th Cir. 2011) ...................................................................................... 17 United States v. Hong Van Nguyen, 303 Fed.Appx. 441 (9th Cir. 2008) ........................................................................... 40 United States v. Mitchell, 445 U.S. 535 (1980) ................................................................................................ 7, 37 United States v. Peninsula Commc’ns, Inc., 287 F.3d 832 (9th Cir. 2002) ...................................................................................... 16 Wild Fish Conservancy v. Salazar, 688 F.Supp.2d 1225 (E.D. Wa. 2010) ....................................................................... 34 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir. 2011) .................................................................................. 33
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321 (1996)............................................................................ 7
RULES AND REGULATIONS: Fed. R. Civ. P. 12(b)(1) .............................................................................................. 10, 15, 16 Fed. R. Civ. P. 12(b)(6) .............................................................................................. 10, 16, 35 Fed. R. Civ. P. 15(a)(1) ........................................................................................................... 10 Fed. R. Civ. P. 56 ..................................................................................................................... 16 43 C.F.R. §§ 1610.5-3(a) ........................................................................................................... 4
Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward (2013) at 86-87,” http://dels.nas.edu/Report/Using-Science-Improve/13511 ............................. 10
The Wild Free-Roaming Horses and Burros Act directs the Secretary of the
Interior, through the Bureau of Land Management (BLM), to protect and manage
wild horses and burros “in a manner that is designed to achieve and maintain a
thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). In
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA), the Supreme
Court cited this mandate as one example of the type of broad statutory mandate the
Administrative Procedure Act (APA) does not empower courts to enforce, because
“[t]he prospect of pervasive oversight by federal courts over the manner and pace of
agency compliance with such congressional directives is not contemplated by the
APA.” Id. at 66-67.
In this action, Plaintiffs-Appellants Nevada Association of Counties et al.
(NACO) complain of various deficiencies in BLM’s management of wild horses and
burros throughout Nevada, amounting to an alleged “lengthy pattern and practice of
conduct.” Excerpts of Record (ER) 61 ¶ 73.1 NACO asserts, for instance, that BLM
has made and maintained a population estimate that is “low and not science based,”
ER45 ¶ 36, and failed to “keep these horses and burros at appropriate management
levels,” ER51 ¶ 47. NACO’s requested relief includes an order requiring BLM to:
1 The ER citations in this brief are to the electronic version NACO submitted via ECF. By notice sent on December 4, 2015, and re-sent on February 5, 2016, the Court notified NACO that the hard ER copies it submitted did not match the electronic version, and directed NACO to file compliant hard copies.
BLM manages the public lands pursuant to the Federal Land Policy and
Management Act (FLPMA), 43 U.S.C. §§ 1701 to 1787, which directs the Secretary of
the Interior to “manage the public lands under principles of multiple use and
sustained yield, in accordance with the land use plans” developed by the agency. 43
U.S.C. § 1732(a).2 “Multiple use” is a “deceptively simple term that describes the
enormously complicated task of striking a balance among the many competing uses to
which land can be put, ‘including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish[.]’” SUWA, 542 U.S. at 57 (quoting 43 U.S.C.
§ 1702(c)).
B. The Wild Free-Roaming Horses and Burros Act
The Secretary’s responsibility for the protection and management of wild
horses and burros3 on public lands derives from the multiple-use mandate of FLPMA
and the Wild Free-Roaming Horses and Burros Act (Wild Horse Act or Act), 16
U.S.C. §§ 1331-1340. Congress passed the latter statute to address concerns that wild
2 Once a land use plan is adopted, future management actions, including management of wild horses and burros, must be consistent with that plan. 43 C.F.R. §§ 1610.5-3(a); 4710.1. 3 For simplicity, this brief generally refers to wild horses and burros collectively as “wild horses” or “horses.”
(quoting H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978)); see also Blake v.
Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993). By amendments passed in 1978,
Congress increased the Secretary’s authority and discretion to manage and remove
excess horses from the public lands, and confirmed that protection of wild horses was
to be balanced with other multiple uses of the public lands. Am. Horse Prot., 694 F.2d
at 1310, 1316 (“The main thrust of the 1978 amendments is to cut back on the
protection the Act affords wild horses, and to reemphasize other uses of the natural
resources wild horses consume.”).
As amended, the Act grants the Secretary4 authority over wild horses on federal
lands under her jurisdiction and directs her to protect and manage these animals “as
components of the public lands” and “in a manner that is designed to achieve and
maintain a thriving natural ecological balance” on those lands. 16 U.S.C. § 1333(a); see
generally Fund for Animals v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). All management
4The Act authorizes both the Secretary of the Interior and the Secretary of Agriculture to manage wild horses on lands within their jurisdiction. The lands at issue in this case fall within the Secretary of the Interior’s jurisdiction.
typically uses an AML range bounded by a “low AML” and “high AML” for each
area.5
When the Secretary determines that “an overpopulation exists on a given area
of the public lands and that action is necessary to remove excess animals,” the Act
provides that the Secretary “shall immediately remove excess animals from the range
so as to achieve [AMLs].” 16 U.S.C. § 1333(b)(2). Removals are to be carried out
until “all excess animals have been removed so as to restore a thriving natural
ecological balance to the range, and protect the range from the deterioration
associated with overpopulation[.]” Id. The Act specifies the “order and priority” of
these removals:
5 See Office of the Inspector General, Rpt. No. C-IS-BLM-0018-2010, “BLM Wild Horse and Burro Program” (Dec. 2010), available at www.blm.gov/.../whbwebcast.Par.37860.File.dat/OIG_report_12132010.pdf (last visited February 11, 2016).
(A) The Secretary shall order old, sick or lame animals to be destroyed in the most humane manner possible;
(B) The Secretary shall cause such number of additional excess [animals] to be humanely captured and removed for private maintenance and care for which he determines an adoption demand exists by qualified individuals, and for which he determines he can assure humane treatment and care * * *; and
(C) The Secretary shall cause additional excess [animals] for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.
16 U.S.C. § 1333(b)(2).
While the Act directs the Secretary to destroy or sell certain excess animals,
over the past two decades Congress has expressly prohibited BLM from using any of
its appropriated funds for the destruction of healthy horses in a majority of its
appropriations statutes. See, e.g., Consolidated Appropriations Resolution, Pub. L. No.
108–7, 117 Stat. 11, 217 (2003); Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321, 1321–156 (1996);
Pub. L. No. 100–446, 102 Stat. 1774, 1774 (1988).
C. The Administrative Procedure Act
A federal court may not adjudicate a claim against a federal agency unless the
United States has waived its sovereign immunity from suit for that claim. United States
v. Mitchell, 445 U.S. 535, 538 (1980), cited in Rattlesnake Coalition v. United States Envtl.
Prot. Agency, 509 F.3d 1095, 1103 (9th Cir. 2007). The Wild Horse Act does not
subject BLM to suit; accordingly, NACO must establish a waiver under the APA. See
five of the past twenty years. See In Def. of Animals v. U.S. Dep’t. of the Interior, 751 F.3d
1054, 1059 n.3, 1060 n.6 (9th Cir. 2014). That has left qualifying adoptions and sales
as BLM’s only options, even as demand for the horses has decreased. See In Def. of
Animals, 751 F.3d at 1060 n.6 (explaining that after conducting a gather and
attempting to adopt out healthy, excess horses, BLM transfers unadopted horses to
private, long-term holding facilities). Second and related, BLM’s efforts have been
limited by fiscal strain. In 2008, the Government Accountability Office determined
that BLM’s capacity to manage wild horse populations would be increasingly limited
by the cost of holding captured animals for adoption, since the supply of horses far
outstripped demand.6 In 2010, the Department of the Interior’s Inspector General
reported that absent gathers and other population control measures, the number of
wild horses on public lands would grow exponentially, eventually degrading the
environment and hindering attempts to implement multiple-use strategies.7 Most
recently, the National Academy of Sciences (NAS) conducted a comprehensive review
of the Wild Horse Program, concluding that BLM had likely underestimated the total
number of horses on public lands, and finding that removals could actually increase
the population growth rate, through compensatory population growth related to
6 See GAO Report to the Chairman, Cmty. on Natural Res., Rpt. No. 09-77, “BLM – Effective Long-Term Options Needed to Manage Unadopted Wild Horses” (Oct. 2008), available at www.gao.gov/new.items/d0977.pdf (last visited February 10, 2016). 7 See Office of the Inspector General, Rpt. No. C-IS-BLM-0018-2010, “BLM Wild Horse and Burro Program” (Dec. 2010), supra note 5.
decreased competition for forage.8 NAS explained that removing horses and burros
alleviates self-limiting population pressures, such as lack of water or forage, allowing
the herds to grow at an annual rate of 15-20 percent. Id. at 266.
III. Proceedings Below
NACO filed its original complaint in this action on December 30, 2013. ER74.
The American Wild Horse Preservation Campaign and three individuals intervened as
defendants, and the Campaign and two of the individuals, Terri Farley and Mark
Terrell, moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction. ER78. NACO obtained a stay of that motion and
sought leave to amend its original complaint. ER78. The district court granted the
requested leave, but indicated that NACO had sought leave when none was required
under Federal Rule of Civil Procedure 15(a)(1). ER79.
NACO filed its First Amended Complaint on July 21, 2014. ER79. The
Campaign renewed its motion to dismiss and the federal defendants-appellees and the
remaining intervenor-defendant, Laura Leigh, filed separate motions to dismiss the
First Amended Complaint. ER78-79. Leigh moved to dismiss for lack of subject
matter jurisdiction or in the alternative pursuant to Rule 12(b)(6) for failure to state a
claim; the federal defendants-appellees sought dismissal for failure to state a claim.
8 See “Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward (2013) at 86-87,” available at http://dels.nas.edu/Report/Using-Science-Improve/13511 (last visited February 10, 2016).
judgment on the alternative ground presented to the district court and supported by
the record that NACO failed to state a claim on which relief can be granted.
Finally, NACO waived its purported challenges to the district court’s dismissal
of its due process claim and to the court’s dismissal with prejudice, because it did not
distinctly and specifically argue these issues in its Opening Brief. Even if NACO had
not waived its challenge to the district court’s dismissal of its due process claim,
however, the judgment should still be affirmed because the district court correctly
determined that the claim lacks merit.
STANDARD OF REVIEW
This Court reviews de novo dismissals under Rule 12(b)(1). Rattlesnake Coalition,
509 F.3d at 1100; Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n.2 (9th Cir.
2004). “It is to be presumed that a cause lies outside [of federal courts’] limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted), quoted in Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084,
1091 (9th Cir. 2014). A district court is free to hear evidence regarding jurisdiction and
to resolve factual disputes where necessary; in such cases, the district court’s findings
of fact relevant to its determination of subject matter jurisdiction are reviewed for
clear error.9 Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1195
9 NACO has provided the Court with an incorrect standard of review for dismissals under Federal Rule of Civil Procedure 12(b)(1). Citing Thornhill Publ’g Co. v. General
(9th Cir. 2008); United States v. Peninsula Commc’ns, Inc., 287 F.3d 832, 836 (9th Cir. 2002);
Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) “tests the legal sufficiency
of a claim.”10 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979), NACO contends the reviewing court must assume all material allegations in the complaint to be true, and view them in the light most favorable to the non-moving party. Br. at 39. As Thornhill Publ’g makes clear, that standard is inapplicable to Rule 12(b)(1) motions to dismiss. 594 F.2d at 733. Faced with a factual attack on subject matter jurisdiction:
‘the trial court may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56. * * * (N)o presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.’
Id. (emphasis added) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d, 884 891 (3d Cir. 1977)) (footnote omitted). 10 NACO has also provided the Court with an outdated standard of review for motions under Fed. R. Civ. P. 12(b)(6), citing a 1991 district court opinion from Delaware for the proposition that “[a] motion to dismiss cannot be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Br. at 38. That test, which derives from Conley v. Gibson, 355 U.S. 41 (1957), was later abrogated by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). There, the Supreme Court held that, to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff must offer “more than labels,” “conclusions,” or a “formulaic recitation of the elements of a cause of action” in its pleadings. Id. at 555; see also Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014).
The D.C. Circuit has applied these principles in the Wild Horse Act context.
In Fund for Animals, Inc. v. BLM, 460 F.3d 13 (D.C. Cir. 2006), the Court rejected a
challenge that, like NACO’s, sought programmatic review of BLM’s management of
wild horses and burros, although the plaintiffs in that case complained that BLM’s
management was too strict, rather than too lax. They attempted to challenge BLM’s
plan to achieve nationwide AML in five years, which BLM had presented to Congress
as a Presidential Budget Initiative. 460 F.3d at 16. The D.C. Circuit explained that
while the budget proposal might serve as a “useful planning document,” it did not
“‘implement, interpret, or prescribe’ any ‘law or policy’” nor did it constitute an order,
license, sanction, or relief. Id. at 84 (internal citations omitted); 5 U.S.C. § 551(13).
The Court stated that “[m]uch of what an agency does is in anticipation of agency
action,” and cited preparing proposals, conducting studies, and meeting with
members of Congress and interested groups as examples of such anticipatory
activities. Id. at 19-20. It further cited “[t]he individual roundups” as something that
might qualify as a final agency action, in contrast to the budget proposal which did
not.11 Id. at 20.
11 Indeed, this Court has previously reviewed an individual roundup under the APA. As illustrated by the facts of In Def. of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054 (9th Cir. 2014), where BLM solicited comments from 250 sources and prepared a 157-page Environmental Assessment before it decided to conduct a single gather on one HMA, substantial analysis and planning precedes such actions. Id. at 1059-61.
and failures to act . . . violate not only the mandatory provisions of the Act to remove
horses and burros and to take other measures to reduce populations to AMLs, they
are arbitrary and capricious and violate the Act’s mandate that multiple use principles
be honored.”); ER56 ¶ 61 (describing “deterioration of” . . . conditions within
Nevada”); ER59 ¶ 68 (alleging that “BLM is obligated to consider and protect” “vital
components of the economy of Nevada and its counties”).
The district court correctly determined that NACO’s lawsuit is a nonjusticiable
programmatic challenge. On appeal, NACO asserts the court erroneously faulted it
for “asserting multiple improper actions,” Br. at 46, and that its amended complaint
identifies various justiciable “decisions and actions”:
including without limitation the setting of AML’s [sic], the warehousing of horses instead of following the statutory mandates . . ., the manner in which horse and burro inventories are conducted and kept, the decisions not to comply with requests from, for example, appellant Crawford Cattle, to remove horses and burros from private property, and their refusal to conduct gathers requested by various parties, including members of the appellant entities, among others.
Br. at 53-54 (citing Amended Complaint at ¶¶ 12(a)(i)-(i)(iv); 12(b), 12(c), 27-30, 33-
38, 40-47, 50-56, 62, 75-82). NACO declines to “give an exhaustive description of
such allegations” because its “complaint speaks for itself.” Br. at 54.
NACO is correct that its First Amended Complaint speaks for itself, but wrong
as to what it says. In it, NACO purports to challenge the entirety of BLM’s wild
horse and burro management program in Nevada, and to that end asserts that
violation of the law is rampant throughout the program. See NWF, 497 U.S. at 890-
established or applied an allegedly defective AML.12 As noted above, the APA
requires a challenge to a discrete “rule, order, license, sanction, relief, or the equivalent
or denial thereof.” 5 U.S.C. § 551(13).
The First Amended Complaint’s various references to “long-term holding” and
“warehousing” of horses fare no better. See ER43, 45-46, 53-54, 56-57, and 59 (Am.
Cmplt. ¶¶ 33, 38, 55, 62, 63, 81, and 94). NACO avers generally that the practice is
rampant and too expensive, and further that it is the cause of BLM’s shortage of
funds for other wild horse and burro management activities. See ER43-44, 57 (Am.
Cmplt. ¶¶ 32-33, 63). These allegations, which essentially seek judicial re-ordering of
BLM’s priorities in its management of wild horses and burros, are not justiciable
because “[t]he federal courts are not authorized to review agency policy choices in the
abstract.” Fund for Animals, 460 F.3d at 18. In Fund for Animals, the D.C. Circuit
found that it could not review BLM’s proposed strategy for achieving nationwide
AMLs in five years, which the Agency had presented in a Presidential Budget
Initiative and which included “long-term pasturing for unadoptable animals,” because
the strategy was not a final agency action. Id. at 19-23.
12 A plaintiff may be able to contest an AML when it is set by BLM, but NACO’s First Amended Complaint does not identify, let alone challenge, any specific final agency action establishing an AML. Further, and as the district court correctly observed, NACO’s numerous references to inventories and AMLs fare no better as § 706(1) claims, because NACO does not identify a single inventory or AML that BLM allegedly failed to conduct or set. ER6.
Animals v. U.S. Dep’t. of the Interior, 909 F.Supp. 2d 1178, 1194-95 (E.D. Ca. 2012), aff’d,
751 F.3d 1054 (9th Cir. 2014) (upholding a BLM decision to utilize long-term private
pasturing in the context of a challenge to an individual gather).
B. NACO’s First Amended Complaint Does Not Seek to Compel Any Discrete Agency Action that BLM was Required to Take.
NACO’s First Amended Complaint also fails to allege any reviewable failure to
act, which must assert “that an agency failed to take a discrete agency action that it is
required to take.” SUWA, 542 U.S. at 65 (emphasis in original). The gravamen of
NACO’s suit is its assertion that BLM has failed to “maintain wild horses and burros
in a thriving ecological balance” in Nevada. ER46-51 (Am. Cmplt. ¶¶ 39-47); see Br. at
51 (asserting that this is one of several actionable mandates it alleged). In relevant
part, the Wild Horse Act provides:
[t]he Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands. He shall consider the recommendations of qualified scientists in the field of biology and ecology, some of whom shall be independent of both Federal and State agencies . . . All management activities shall be at the minimal feasible level and shall be carried out in consultation with the wildlife agency of the State wherein such lands . . .
16 U.S.C. § 1333(a) (emphasis added). This broad statutory mandate plainly fails for
lack of the requisite discreteness because, like the nonimpairment mandate addressed
in SUWA, it is “mandatory as to the object to be achieved, but it leaves BLM a great
deal of discretion in deciding how to achieve it.” Id. at 66. Indeed, in SUWA, the
Supreme Court cited this mandate as one example of the kind of mandate the APA
does not empower courts to enforce, because:
[i]f courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved—which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to ‘manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance . . ..’The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA.
Id. at 66-67.
Remarkably, NACO quotes the very passage in which the Supreme Court used
the Wild Horse Act’s thriving ecological balance mandate as an example of what
courts cannot compel under § 706(1), but claims that SUWA merely draws a
distinction between unenforceable “aspirational” mandates and enforceable
“operational” ones, and that the thriving natural balance mandate falls into the latter
category. Br. at 47-50, 51 (identifying paragraphs 40 of the Amended Complaint,
which alleges the Act requires “the population of wild, free-roaming horses and
burros [to] be kept in an ecological balance and multiple-use relationship”, and
paragraph 2(b), which alleges that BLM is “required [to] consider the
recommendations of qualified scientists in the field of biology and ecology”, as
paragraphs in which NACO alleged violations of “operational” mandates). In so
On this point, NACO’s allegations and argument are based on the incorrect
premise that the Wild Horse Act imposes a mandatory, nondiscretionary duty on
BLM to conduct gathers and remove animals whenever AMLs are exceeded. See Br.
at 18 (“The very assertion that the number of animals have exceeded AMLs and the
BLM has chosen not to come into compliance with those AMLs provides justiciable
action”). The Wild Horse Act does no such thing. Congress enacted the Act “to
protect and manage wild free-roaming horses and burros as components of the public
lands.” 16 U.S.C. § 1333(a). Nevertheless, in recognition that protecting wild horses
and burros may lead to an “overpopulation” of those animals on the range, Congress
provided BLM with the discretion to remove excess wild horses and burros from
public lands, if the Agency makes two prerequisite findings. BLM may exercise that
discretion only if it determines both that “an overpopulation exists on a given area of
the public lands and that action is necessary to remove excess animals.” 16 U.S.C.
§ 1333(b)(2)(iv) (emphasis added). Thus, even assuming an overpopulation
automatically exists whenever the number of wild horses and burros exceeds the AML
for a given area, which it does not, BLM still has discretion to decide whether action is
necessary to remove excess animals.13 Id. (emphasis added). If and only if BLM
13 BLM has discretion to determine whether an overpopulation exists, as the Wild Horse Act does not define “overpopulation” or “AML,” much less direct BLM to equate “overpopulation” with any and all instances in which there are more horses than the AML in a given area. To the contrary, the Act directs BLM to consider several sources of information in determining both whether an overpopulation exists and whether action is necessary to remove excess animals, including the current
makes both determinations, then it “shall immediately remove excess animals from
the range so as to achieve [AMLs],” and shall take such action in the “order and
priority” specified in the Act. Id.; see also In Def. of Animals, 751 F.3d at 1064-65
(addressing argument that BLM did not comply with the Act’s “order and priority”
requirements in the context of an individual gather).
Indeed, Section 1333(b)(1) directs BLM to use the inventories required by the
Act to, among other purposes, determine “whether and where an overpopulation
exists and whether action should be taken to remove excess animals,” as well as to determine
“whether [AMLs] should be achieved by the removal or destruction of excess animals,
or other options (such as sterilization, or natural controls on population levels.” 16 U.S.C.
§ 1333(b)(1) (emphasis added). Combined, Sections 1333(b)(1) and (b)(2) leave no
doubt that BLM has discretion to determine whether action is necessary to address an
overpopulation, even assuming it has no discretion to determine the existence of an
overpopulation in the first place.14 The interpretation implicit in NACO’s position
renders superfluous the phrase “and whether action should be taken to remove excess
animals.” Id. § 1333(b)(2)(iv). The Court should accordingly reject it, because “[u]nder
inventory of lands, land-use plans, and environmental impact statements. 16 U.S.C. § 1333(b)(2)(i)-(iv). 14 Even if the Wild Horse Act was ambiguous on this point, a court could not compel BLM to act because a non-discretionary duty must be “clear cut,” “readily-ascertainable,” and not “only [ ] the product of a set of inferences based on the overall statutory scheme.” Our Children’s Earth Found. v. U.S. Envtl. Prot. Agency, 527 F.3d 842, 851 (9th Cir. 2008) (citing Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987)).
Notably, the absence of any deadline or timetable in the Wild Horse Act is
significant. In SUWA, the Supreme Court provided examples of “ministerial or non-
discretionary act[s]” that could be compelled under APA § 706(1), including the duty
to promulgate regulations by a certain date. Id. at 64-65; see also Gardner v. BLM, 638
F.3d 1217, 1224 (9th Cir. 2011) (citing lack of a timetable as one factor in determining
that BLM could not be compelled to close certain areas to off-road vehicle use, where
that duty was triggered only if BLM made a determination of “considerable adverse
effects,” and BLM’s regulations specified no timing or process for that
determination).
Finally, NACO’s allegations regarding BLM’s purported failures to remove wild
horses from private land upon various requests fare no better. Under the Act, “[i]f
wild free-roaming horses or burros stray from public lands onto privately owned land,
the owners of such land may inform the nearest Federal marshal or agent of the
Secretary, who shall arrange to have the animals removed.” 16 U.S.C. § 1334.
NACO’s First Amended Complaint, however, does not challenge any specific failure
of BLM to address such a request, but instead avers generally that “on occasion,”
BLM has “refused to remove horses from private lands when requested to do so.” 15
15The only specific private land removal request mentioned in NACO’s First Amended Complaint is one allegedly made by Nevada First Corporation in 2000. ER29 ¶ 12(a)(i). NACO mentions that request only in the course of describing Nevada First Corporation, but even if NACO sought to compel action based on it, the claim accrued more than six years before NACO filed this suit in December, 2013, and is accordingly time-barred. 28 U.S.C. § 2401(a); see Ctr. for Biological Diversity
ER43 ¶ 33. The district court correctly determined that these references are provided
only as examples of BLM’s alleged programmatic failure. ER6.
II. The Judgment May be Affirmed on the Alternative Ground that NACO Failed to State a Claim On Which Relief Can Be Granted.
As noted above, BLM moved to dismiss NACO’s First Amended Complaint
for failure to state a claim pursuant to Rule 12(b)(6), while all of the intervenor-
defendants moved to dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1). All three of the motions to dismiss raised nearly identical arguments. ER3,
(Opinion at 1 n.3); see also Br. at 26. The district court construed BLM’s arguments as
jurisdictional, and granted the first-filed intervenors’ motion to dismiss for lack of
subject matter jurisdiction, dismissing the other two motions to dismiss as moot. ER2
(Opinion at 1, 3 n.4). Under the circumstances presented here, dismissal on either or
both grounds would have been proper, as this Court has treated the APA’s final
agency action and failure to act requirements both as jurisdictional requirements and
as non-jurisdictional elements of statutory standing. This Court may affirm on either
v. Hamilton, 453 F.3d 1331, 1335 (11th Cir. 2006) (claim alleging a failure to designate critical habitat by statutory deadline accrued on day after the deadline and was time-barred under §2401(a)); Wild Fish Conservancy v. Salazar, 688 F.Supp.2d 1225, 1235-36 (E.D. Wa. 2010) (finding a failure-to-act claim time-barred under § 2401(a)); Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221, 1229 n. 3 (D.Mont.2004) (finding the “continuing violations” doctrine to be inapplicable in the context of an APA claim for judicial review) (aff'd but issue not addressed in Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006)); cf The Wilderness Soc’y v. Norton, 434 F.3d 584 (D.C. Cir. 2006) (opining in dicta that § 2401(a)) would not likely bar suit alleging continuing failures to act)).
NACO’s contention that the district court could not dismiss for lack of
jurisdiction unless NACO’s claims were frivolous, which it bases on a single, nearly
40-year-old case holding that a certain element of a Sherman Act claim should be
accorded Rule 56 treatment because it goes to the merits as well as to jurisdiction, Br.
at 41-42 (citing Thornhill Publ’g Co. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 734),
ignores the great weight of precedent upholding dismissals of APA suits that failed to
challenge a final agency action or failure to act for lack of jurisdiction.16
16 NACO’s argument that NWF is distinguishable because it arose in the summary judgment context is also unavailing. Br. at 45. In NWF, as discussed above, the Supreme Court found two defects. First, it found that the facts alleged in certain affidavits did not establish that the affiants were “adversely affected or aggrieved by agency action” within the meaning of 5 U.S.C. § 702, because the affidavits merely alleged use of “unspecified portions of an immense tract of territory,” which was
It is well-established that a federal court may not adjudicate a claim against a
federal agency unless the United States has waived its sovereign immunity for that
claim. United States v. Mitchell, 445 U.S. 535, 538 (1980), cited in Rattlesnake Coalition v.
United States Envtl. Prot. Agency, 509 F.3d 1095, 1103 (9th Cir. 2007). Because the Wild
Horse Act does not subject BLM to suit; NACO must establish a waiver under the
APA. See 5 U.S.C. §§ 702, 704; see also Rattlesnake Coalition, 509 F.3d at 1103. This
Court has found that to establish the requisite waiver, a successful claim under the
relevant statutory provisions must be stated. As this Court explained when it affirmed
a dismissal based on lack of subject matter jurisdiction or, in the alternative, a failure
to state a claim:
Because “[t]he United States must waive its sovereign immunity before a federal court may adjudicate a claim brought against a federal agency,” and has done so through the above-discussed [Endangered Species Act] and APA provisions, to “establish waiver of immunity” [the plaintiff] must have successfully stated a claim under those provisions. Thus, if the district court’s Rule 12(b)(6) dismissal was justified, its Rule 12(b)(1) ruling was also correct.
insufficient to overcome a motion for summary judgment. 497 U.S. at 889. That holding is not at issue here, as it is the second defect, the lack of a final agency action, that is relevant. Id. at 890-900. There is no need to evaluate that defect on a motion for summary judgment, because no factual allegations could transform something that is not a final agency action into a final agency action. See NWF, 497 U.S. at 891 (“It is impossible that affidavits would suffice . . . to enable respondent to challenge the entirety of petitioners’ so-called ‘land withdrawal review program.’ That is not an ‘agency action’ within the meaning of § 702, much less a ‘final agency action’ within the meaning of § 704.”).
III. NACO has Waived its Purported Challenges to the Dismissal of its Due Process Claim and to the Dismissal with Prejudice.
Finally, NACO opines in its Statement of the Case that the district court
seemed to struggle with NACO’s assertion that “some of the government’s actions
violate [NACO’s] due process rights” and contends that it is unclear under BLM’s
regulations “when, by what method, and from whom” BLM will issue a written Wild
Horse Act decision, and that “[t]his very dilemma, caused by the BLM, constitutes a
violation of Appellants [sic] due process rights.” Br. at 9-10, see also 34 n. 10. NACO
does not, however, present any argument or supporting authority on this issue in its
Opening Brief. Similarly, NACO’s Issues Presented and Summary of Argument
identify the district court’s dismissal of its First Amended Complaint without granting
leave to amend as an issue, but again NACO fails to offer any argument or authority
on this point in its Opening Brief.17 Br. at 2 (Issues Presented), 37-38 (Summary of
Argument). NACO has accordingly waived these arguments on appeal.
This Court “review[s] only issues which are argued specifically and distinctly in
a party’s opening brief.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994); see also
Indep. Towers of Washington v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) (same).
17 In NACO’s passing reference to this issue in its Summary of Argument, it states that it requested leave to amend “to add the specificity.” Br. at 38. NACO does not identify when or how it made such a request, and the record does not reflect that any such request was made. It shows that NACO unnecessarily requested leave to file its First Amended Complaint (Dkt. 51), but does not reflect that NACO ever made any subsequent, proper request for leave to file a second amended complaint. ER79-80.
ANDREW C. MERGEN Of Counsel: ELIZABETH ANN PETERSON NANCY ZAHEDI TRAVIS ANNATOYN Office of the Regional Solicitor ANNA T. KATSELAS U.S. Dep’t of the Interior s/ Anna T. Katselas
Attorneys U.S. Department of Justice Environment & Natural Resources Division P.O. Box 7415 Washington, D.C. 20044 Phone: (202) 514-2772 Fax: (202) 353-1873 Email: [email protected]
