legal naco appeal government's answering brief
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]
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TABLE OF CONTENTS PAGE
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
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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
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TABLE OF AUTHORITIES CASES: Alvarado v. Table Mountain Rancheira, 509 F.3d 1008 (9th Cir. 2007) ....................................................................... 33, 36, 38 Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310 (D.C. Cir. 1982) ................................................................................... 5 Animals v. U.S. Dep’t. of the Interior, 751 F.3d 1054(9th Cir. 2014) ............................................................. 9, 21, 24, 27, 32 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..................................................................................................... 16 Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924 (9th Cir.2003), (per curiam) .................................................................. 36 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................................................ 13, 16, 17 Belle Co., L.L.C. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014) ...................................................................................... 41 Bennett v. Spear, 520 U.S. 154 (1997) ..................................................................................................... 24 Blake v. Babbitt, 837 F. Supp. 458 (D.D.C. 1993) .................................................................................. 5 Boise Cascade Corp. v. U.S. Envtl. Prot. Agency, 942 F.2d 1427 (9th Cir.1991) ..................................................................................... 33 Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) .................................................................................... 40 Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084 (9th Cir. 2014) .................................................................................... 15 Colvin Cattle Co. v. United States, 468 F.3d 803 (Fed. Cir. 2006) .................................................................................... 41
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Conley v. Gibson, 355 U.S. 41 (1957) ....................................................................................................... 16 Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) .................................................................................... 17 Coos County Board of Comm’rs v. Kempthorne, 531 F.3d 792 (9th Cir. 2008) ............................................................................... 37, 38 Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331 (11th Cir. 2006) .................................................................................. 34 Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2003) ............................................................................. 30, 38 Dell Los Reyes v. Southwest Gas Corp., 319 Fed.Appx. 639 (9th Cir. 2009) ........................................................................... 40 Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014) ...................................................................................... 16 Ecology Ctr. v. U.S. Forest Serv., 192 F.3d 922 (9th Cir. 1999) ...................................................................................... 25 Ellingson v. Burlington N., Inc., 653 F.2d 1327 (9th Cir.1981) ..................................................................................... 40 Fund for Animals v. BLM, 460 F.3d 13 (D.C. Cir. 2006) ................................................................ 5, 6, 21, 22, 26 Gardner v. BLM, 638 F.3d 1217 (9th Cir. 2011) ............................................................................. 33, 34 Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994) ........................................................................................ 39 Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221 (D.Mont.2004), aff’d, 469 F.3d 801 (9th Cir.2006) ..... 34, 38
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In Def. of Animals v. U.S. Dep’t. of the Interior, 909 F.Supp. 2d 1178 (E.D. Ca. 2012), aff’d, 751 F.3d 1054 (9th Cir. 2014) .................................................................... 27, 28 In re Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013) .................................................................................... 33 Indep. Towers of Washington v. Washington, 350 F.3d 925 (9th Cir. 2003) ...................................................................................... 39 Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189 (9th Cir. 2008) .................................................................................... 15 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ..................................................................................................... 15 Larin Corp. v. Mueller, 364 Fed.Appx. 380 (9th Cir. 2010) ........................................................................... 39 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ...................................................................................... 40 Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) .................................................... 8, 12, 17-19, 22, 23, 27, 36, 37 Luong v. Circuit City Stores, Inc., 368 F.3d 1109 (9th Cir. 2004) .................................................................................... 15 Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) ...................................................................................... 38 Martinez-Serrano v. United States Immigation and Naturalization Serv., 94 F.3d 1256 (9th Cir. 1996) ...................................................................................... 39 Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d, 884 (3d Cir. 1977) ..................................................................................... 16 Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) ...................................................................................... 17
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Mt. St. Helens Mining & Recovery Ltd. P’ship v. United States, 384 F.3d 721 (9th Cir. 2004) ...................................................................................... 33 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ...................................................................................... 16 Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998) ...................................................................................... 25 Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) ..............................................1, 4, 8, 13, 14, 17, 20, 22, 28-30, 35 ONRC Action v. BLM, 150 F.3d 1132 (9th Cir. 1998) .................................................................................... 38 Or. Nat. Desert Ass’n v. U.S. Forest Ser., 465 F.3d 977 (9th Cir. 2006) ...................................................................................... 24 Our Children’s Earth Found. v. U.S. Envtl. Prot. Agency, 527 F.3d 842 (9th Cir. 2008) ...................................................................................... 32 Pebble Ltd. P’ship v. United States Envtl. Prot. Agency, 604 Fed.Appx. 623 (9th Cir. 2015) .................................................................... 35, 36 Perkins v. Bergland, 608 F.2d 803 (9th Cir. 1979) ...................................................................................... 33 Rattlesnake Coalition v. United States Envtl. Prot. Agency, 509 F.3d 1095 (9th Cir. 2007) .............................................................. 7, 8, 15, 37, 38 Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987) .................................................................................... 16 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994) ...................................................................................... 38 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) .................................................................................... 38
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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
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STATUTES: Administrative Procedure Act: 5 U.S.C. § 551 ............................................................................................................... 18 5 U.S.C. § 551(13) ................................................................................ 8, 20, 21, 26, 30 5 U.S.C. § 702 ................................................................................. 8, 17, 18, 19, 36, 37 5 U.S.C. § 704 .............................................................................................. 8, 17, 19, 37 5 U.S.C. § 706(1) ............................................................................ 8, 17, 20, 22, 29, 30 5 U.S.C. § 706(2) ............................................................................................. 11, 12, 22 Wild Horse Act: 16 U.S.C. § 1331 ............................................................................................................. 5 16 U.S.C. §§ 1331-1340 ............................................................................................. 4, 5 16 U.S.C. § 1332(c) ........................................................................................................ 6 16 U.S.C. § 1333(a) ............................................................................ 1, 5, 6, 28, 31, 33 16 U.S.C. § 1333(b)(1) ...................................................................................... 6, 25, 32 16 U.S.C. § 1333(b)(2) .................................................................................. 6, 7, 25, 32 16 U.S.C. § 1333(b)(2)(i)-(iv) ...................................................................................... 32 16 U.S.C. § 1333(b)(2)(iv) .................................................................................... 31, 32 16 U.S.C. § 1334 ........................................................................................................... 33
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Federal Land Policy and Management Act: 43 U.S.C. §§ 1701 to 1787 ............................................................................................ 4 43 U.S.C. § 1702 ............................................................................................................. 4 43 U.S.C. § 1732(a) ........................................................................................................ 4 43 U.S.C. § 1782(c) ...................................................................................................... 20 Miscellaneous: 28 U.S.C. § 1291 ............................................................................................................. 2 28 U.S.C. § 1331 ............................................................................................................. 2 28 U.S.C. § 2401(a) ...................................................................................................... 34 28 U.S.C. §§ 2201-2202 ................................................................................................. 2 Pub. L. No. 100–446, 102 Stat. 1774 (1988) ............................................................. 7
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321 (1996)............................................................................ 7
Consolidated Appropriations Resolution, Pub. L. No. 108–7, 117 Stat. 11 (2003) ......................................................................................................... 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
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43 C.F.R. Part 4700 ................................................................................................................. 40 43 C.F.R. § 4710.1 ................................................................................................................. 4, 6 43 C.F.R. § 4710.3-1 .................................................................................................................. 6 LEGISLATIVE HISTORY: H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978) ..................................................... 5 MISCELLEANOUS: 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), www.gao.gov/new.items/d0977.pdf .................................................... 9 Office of the Inspector General, Rpt. No. C-IS-BLM-0018-2010, “BLM Wild Horse and Burro Program” (Dec. 2010),
www.blm.gov/.../whbwebcast.Par.37860.File.dat/OIG_report_ 12132010.pdf .................................................................................................................. 6
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
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INTRODUCTION
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.
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“immediately,” and “on a continuing basis thereafter,” conduct gathers of all excess
animals in Nevada; immediately cease the long-term warehousing of animals removed
from excess populations of animals on public lands in Nevada; “promptly and
without delay proceed to auction, sell, and otherwise properly dispose of excess
animals;” “[a]dhere to multiple use principles”; and “[c]ease interfering with Nevada
water rights”. ER67-68 ¶ 94.
The district court dismissed NACO’s suit for lack of subject-matter
jurisdiction, finding that it neither challenges any final agency action nor seeks to
compel any discrete agency action that BLM was required to take.
STATEMENT OF JURISDICTION
NACO alleged jurisdiction in the district court pursuant to 28 U.S.C. § 1331
(federal question) and 28 U.S.C. §§ 2201-2202 (declaratory judgment). It identified
the APA as providing the requisite waiver of sovereign immunity. ER19 ¶ 6. The
district court found that it lacked subject matter jurisdiction because NACO’s
challenge is a programmatic challenge that is unreviewable under the APA, and
entered final judgment dismissing NACO’s First Amended Complaint with prejudice
on March 12, 2015. ER1-10. NACO filed a timely notice of appeal on March 31,
2015. ER11-12. This Court has jurisdiction to review the district court’s final
judgment pursuant to 28 U.S.C. § 1291.
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STATEMENT OF THE ISSUES
The APA waives sovereign immunity and provides for judicial review of
executive action where certain requirements are met. Relevant here, it provides for
judicial review of final agency action and also authorizes courts to compel discrete
agency action that an agency was required to take. The APA does not authorize suits
seeking wholesale correction of governmental programs by court decree. The issues
on appeal are:
I. Whether the district court correctly dismissed NACO’s First Amended
Complaint for lack of subject matter jurisdiction because:
A. NACO’s suit does not challenge any final agency action, but instead
impermissibly seeks wholesale improvement of BLM’s program of managing
wild horses and burros in Nevada by court decree, and;
B. NACO’s suit fares no better as an action to compel agency action
unlawfully withheld or unreasonably delayed, because it does not seek to
compel any discrete agency action that BLM was required to take;
II. Whether the district court’s judgment may be affirmed on the alternative
ground that NACO failed to state a claim on which relief may be granted; and
III. Whether NACO waived its purported challenges to the district court’s
dismissal of its due process claim and its dismissal with prejudice, where NACO did
not distinctly and specifically argue these issues in its Opening Brief.
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STATEMENT OF THE CASE
I. Legal Framework
A. The Federal Land Policy and Management Act
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.”
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horses were vanishing from the West, and to preserve them as “living symbols of the
historic and pioneer spirit of the West.” 16 U.S.C. § 1331. But within a few years of
the Act’s passage, the situation had reversed itself “and action [was] needed to prevent
a successful program from exceeding its goals and causing animal habitat
destruction.” Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982)
(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.
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activities are to be at the “minimal feasible level and . . . carried out in consultation
with” the relevant State wildlife agency. 16 U.S.C. § 1333(a).
The Act gives the Secretary discretion to set “appropriate management levels”
(AMLs) and authorizes a variety of methods to achieve those levels. 16 U.S.C.
§ 1333(b)(1). BLM implements the Act by establishing localized “herd management
areas” (HMAs) and setting the AMLs for the wild horse and burro populations within
each HMA. 16 U.S.C. §§ 1332(c), 1333(b)(1); 43 C.F.R. §§ 4710.1, 4710.3-1. BLM
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).
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(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
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5 U.S.C. §§ 702, 704. The APA permits suit against an agency when a person has
suffered “legal wrong because of agency action” or has been “adversely affected or
aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702.
“Agency action” is limited to “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C.
§ 551(13). Where, as here, suit is brought pursuant to the APA rather than a specific
authorization in a relevant substantive statute, the agency action must be “final agency
action.” See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court are subject to
judicial review.”) (emphasis added); Lujan v. National Wildlife Federation, 497 U.S. 871,
883 (1990) (NWF); Rattlesnake Coalition, 509 F.3d. at 1103.
Section 706(1) of the APA authorizes courts to “compel agency action
unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Like Section 704,
Section 706(1) is limited to agency action within the meaning of Section 551(13).
“Sections 702, 704, and 706(1) all insist upon an ‘agency action,’ either as the action
complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)).”
SUWA, 542 U.S. at 62.
II. Recent Management of Wild Horses in Nevada
Over the past two decades, BLM has confronted numerous challenges in
implementing the Wild Horse Act. As previously mentioned, Congress has prohibited
the Agency from using appropriated funds to destroy healthy excess horses for all but
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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.
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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).
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ER1-2. All defendants moved to dismiss on the ground that the APA does not
provide for review of NACO’s challenge. ER1-2.
On March 12, 2015, the district court granted the Campaign’s motion to
dismiss and denied the federal defendants’ and Leigh’s motions as moot. ER1-9. The
court found that it lacked jurisdiction over NACO’s APA causes of action because the
Complaint neither identifies any agency inaction that may be compelled under APA
Section 706(1) nor any final agency action warranting judicial review under APA
Section 706(2). ER1-9. As to the former, the court explained that NACO did not
“allege a single AML or inventory that [BLM] failed to set. Nor [did NACO] identify
a particular instance where [BLM] determined that AMLs had been exceeded, but
failed to remove excess animals following that determination.” ER6-7. The court
found further support for its conclusion in NACO’s requested relief, which includes
an injunction requiring BLM “to promptly and fully comply with all provisions of the
[Wild Horse] Act, to immediately gather excess animals from public lands, to
determine statewide population levels every two months, to sell or dispose of excess
animals currently being maintained in long-term holding facilities, and to stop
interfering with Nevadans’ water rights. ER7 (citing First Amended Complaint ¶¶ 94-
95). The court found that NACO essentially asked it to compel compliance with the
Wild Horse Act and to refashion BLM’s management of wild horses and burros in
Nevada, an impermissible request because a plaintiff “‘cannot seek wholesale
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improvement of [a governmental] program by court decree.’” ER7 (quoting NWF,
497 U.S. at 891).
The court found NACO’s claims under Section 706(2) to be similarly flawed.
ER7-8. It explained that in those claims, NACO complained that BLM acted
arbitrarily and capriciously in creating inventories, maintaining a “thriving natural
balance” on public lands, determining AMLs and excess populations, and deciding to
gather wild horses and burros, but referenced individual instances of BLM’s allegedly
unlawful conduct only to exemplify BLM’s alleged failure to comply with the Wild
Horse Act. ER7-8 (citing NWF, 497 U.S. at 892-93). As with NACO’s Section
706(1) claims, the court found further support for its conclusion in NACO’s
requested relief, which includes a declaration of BLM’s “‘duties and responsibilities . .
. under the [Wild Horse Act] and applicable rules, regulations, and directives, the
[APA], and other applicable statutes and regulations.’” ER8 (citing First Amended
Complaint ¶ 93). The court stated that it may be frustrating for NACO to identify
final agency actions for review when they are concerned with BLM’s allegedly
“‘consistent, persistent, [and] significant missteps’” under the Wild Horse Act, but
that “this is the traditional, and remains the normal, mode of operation of the
courts.’” NWF, 497 U.S. at 894.
Finally, the court addressed NACO’s due process claim. It questioned whether
it had subject matter jurisdiction given NACO’s suggestion that the claim was
intertwined with the APA causes of action, and found in any event that the claim was
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so conclusory as to fail to state a claim on which relief could be granted. ER8-9
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The district court
dismissed NACO’s First Amended Complaint with prejudice, and entered final
judgment on the same day, March 12, 2015. ER9-10.
The record contains no indication that NACO ever sought leave to file a
second amended complaint, or otherwise contested the district court’s dismissal with
prejudice. NACO filed a timely notice of appeal on March 31, 2015. ER74-80, 11-12.
SUMMARY OF THE ARGUMENT
The district court correctly dismissed NACO’s First Amended Complaint
because it lodges precisely the sort of programmatic attack the APA’s limitations
addressed in NWF and SUWA are designed to guard against. NACO purports to
challenge countless BLM actions pertaining to management of wild horses in Nevada,
and ultimately declines to attack any specific determination that would qualify as a
final agency action or failure to act under the APA. The First Amended Complaint’s
numerous references to inventories do not challenge final agency action because
inventories are mere planning tools, and even if they did constitute final agency
action, NACO does not challenge any particular inventory, as the APA requires.
Similarly, NACO does not identify a single final agency action in which BLM
established or applied an allegedly defective AML. NACO’s allegations regarding the
“warehousing” of horses fare no better, as the allegations do not identify any
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particular instance of the practice, let alone actually challenge a single final agency
action, such as an individual gather, in which BLM “warehoused” wild horses.
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 64. Its contention that a court can compel
compliance with the Wild Horse Act’s broad “thriving ecological balance” mandate is
untenable, particularly given the Supreme Court’s use of this mandate in SUWA as an
example of what courts cannot compel under § 706(1). Nor does § 706(1) provide for
review of NACO’s allegations that BLM has generally failed to conduct gathers,
dispose of horses, and remove horses from private property. While individual gathers
constitute final agency action, they cannot be compelled because the Wild Horse Act
gives BLM substantial discretion in deciding whether to conduct them, such that they
do not meet SUWA’s second prong that the agency action be required. 542 U.S. at 64.
NACO’s allegations regarding removal requests fail to challenge any specific failure of
BLM to address such a request, but instead only generally aver that “on occasion,” the
Agency has refused to remove horses from private lands when requested to do so.
NACO’s objection to the jurisdictional basis of the district court’s dismissal is
unpersuasive because ample precedent supports the court’s conclusion that the failure
to challenge a final agency action or failure to act within the meaning of the APA is a
jurisdictional defect. Nonetheless, the Court may also affirm the district court’s
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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
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(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).
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(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also United
States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 991 (9th Cir. 2011); Conservation Force
v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011); Shroyer v. New Cingular Wireless Servs., Inc.,
622 F.3d 1035, 1041 (9th Cir. 2010); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009). If there is “a lack of a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory,” the court must dismiss the complaint.
Conservation Force, 646 F.3d at 1242 (internal quotation marks and citation omitted).
ARGUMENT
I. NACO’s Lawsuit is a Non-Justiciable Programmatic Challenge.
In Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) (NWF), and Norton v.
Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA), the Supreme Court
made clear that the APA does not authorize suits seeking “wholesale improvement of [a
governmental] program by court decree,” regardless of whether such suits are
couched in terms of a challenge to a final agency action or as a suit to compel agency
action unlawfully withheld or unreasonably delayed. NWF, 497 U.S. at 891; SUWA,
542 U.S. at 64-65. Instead, in order “to protect agencies from undue judicial
interference with their lawful discretion, and to avoid judicial entanglement in abstract
policy disagreements which courts lack both expertise and information to resolve,”
the APA insists upon an “‘agency action,’ either as the action complained of (in
§§ 702 and 704) or as the action to be compelled (in § 706(1))”. SUWA, 542 U.S. at
66, 62.
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In NWF, the Supreme Court clarified that the APA’s final agency action
requirement precludes “general judicial review of [an agency’s] day-to-day operations.”
NWF, 497 U.S. at 899. The plaintiffs in that case averred generally that BLM had
violated FLPMA and the National Environmental Policy Act by reclassifying some
lands that were previously “withdrawn” from mineral leasing and mining activities in
11 western states, and dubbed this practice BLM’s “land withdrawal review program”.
Id. at 876-81. In an effort to demonstrate standing, NWF submitted six affidavits in
which members asserted harm from particular land status determinations. Id. at 885-
86.
The Court first found that two of the affidavits could be read to complain of a
particular “agency action” within the meaning of 5 U.S.C. § 551, but were insufficient
to overcome a motion for summary judgment because they failed to establish that at
least one of NWF’s members was, or was threatened to be, “adversely affected or
aggrieved” within the meaning of § 702. Id. at 889. The members alleged only use of
“unspecified portions of an immense tract of territory, on some portions of which
mining activity has occurred or probably will occur by virtue of the governmental
action.” Id. It was not enough to presume the missing facts, the Court explained,
because without them the affidavits would not establish the injury they alleged. Id.
In its Opening Brief, NACO incorrectly argues that NWF holds only the
foregoing, and does not bar its lawsuit because its First Amended Complaint alleges a
connection between the challenged action and the harm alleged that is sufficient to
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overcome a motion to dismiss. Br. at 47 (“the most that can be said about [NWF] is
that it stands for the principle that to have standing to challenge otherwise justiciable
agency actions under the APA there must be a connection between the action being
challenged and harm to your interests”). NACO is flatly wrong because, second and
more importantly for this case, the Supreme Court held that it was “impossible that the
affidavits would suffice” to permit NWF to challenge the “land withdrawal review
program” because that program was “not an ‘agency action’ within the meaning of
§ 702, much less a “final agency action” within the meaning of § 704.” Id. at 890
(emphasis added). It was immaterial that NWF alleged rampant violations of the law
throughout the program, because a plaintiff “cannot seek wholesale improvement of
this program by court decree, rather than in the offices of the Department or the halls
of Congress, where programmatic improvements are normally made.” Id. at 891
(emphasis in original). Rather, a plaintiff must “direct its attack against some
particular ‘agency action’ that causes it harm.” Id. The Supreme Court further
clarified that a plaintiff cannot circumvent the prohibition on programmatic judicial
review by predicating a programmatic challenge on a final agency action. Id. at 892-93
(“But it is at least entirely certain that the flaws in the entire ‘program’—consisting
principally of the many individual actions referenced in the complaint, and
presumably actions yet to be taken as well—cannot be laid before the courts for
wholesale correction under the APA, simply because one of them that is ripe for
review adversely affects one of respondent’s members.”).
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In SUWA, the Supreme Court reaffirmed the bar on programmatic APA
challenges and confirmed that such suits also cannot be brought under APA Section
706(1), which authorizes courts to “compel agency action unlawfully withheld or
unreasonably delayed.” 542 U.S. 55. The SUWA plaintiffs alleged that BLM had
violated FLPMA by failing to manage certain wilderness study areas “in a manner so
as not to impair the suitability of such areas for preservation as wilderness,” 43 U.S.C.
§ 1782(c), and sought to compel compliance with this “nonimpairment mandate”
pursuant to APA § 706(1). SUWA, 542 U.S. at 60-61. The Court held that § 706(1)
only authorizes claims asserting that “an agency failed to take a discrete agency action
that it is required to take,” and further explained that these two limitations “rule out
several kinds of challenges.” Id. at 64 (emphasis in original).
With respect to the first limitation, the Court held that an APA “failure to act”
is “properly understood as a failure to take an agency action—that is, a failure to take
one of the agency actions (including their equivalents) earlier defined in § 551(13)”.
Id. at 62 (emphasis in original). It explained that this limitation “to discrete agency
action precludes the kind of broad programmatic attack . . . rejected in [NWF]”, such
that the NWF plaintiffs “would have fared no better if they had characterized” their
claim as an alleged failure to act. Id. at 64-65. With respect to the second limitation
“to required agency action,” the Court explained that it “rules out judicial direction of
even discrete agency action that is not demanded by law (which includes, of course,
agency regulations that have the force of law).” Id. at 65.
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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.
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The APA’s bar on programmatic challenges applies even more clearly here, as
NACO’s First Amended Complaint—which is couched both in terms of § 706(2) and
§ 706(1) claims—lodges precisely the type of programmatic attack the APA’s
limitations discussed in NWF, SUWA, and Fund for Animals are intended to guard
against. NACO does not even identify any particular plan or proposal, but instead
purports to challenge countless BLM actions pertaining to management of wild horses
in Nevada, and ultimately declines to attack any specific determination that would
qualify as a final agency action or failure to act under the APA, as discussed in more
detail infra. See ER63 ¶ 80. NACO’s allegations leave no doubt that it seeks wholesale
improvement of BLM’s state-wide management of wild horses and burros by way of
an order that would inject a court into all aspects of this management, from BLM’s
planning via inventories and AMLs to the Agency’s decisions as to where, when and
how to conduct gathers and dispose of excess animals. See ER21 ¶ 9(a) (alleging that
“unlawful conditions exist” in “the State of Nevada”); ER44-46 ¶¶ 34-38 (alleging that
BLM’s nationwide population estimate is low and that “undercounting has been going
on for a minimum of more than 5 years”); ER46 ¶ 41 (alleging generally that “[t]he
AMLs established by defendants are . . . arbitrary and capricious”); ER48 ¶ 44
(alleging a “problem in compliance” in Nevada); ER48-49 ¶ 44-45 (alleging that BLM
“is violating multiple use principles . . . by refusing to reduce excess populations while
requiring ranchers . . .and other users of the lands to stop their uses to protect excess
horse populations” not in any particular HMA but in Nevada, and that “[s]uch actions
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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-
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91. Of the various “decisions and actions” NACO mentions, the references to
inventories, AMLs, and “warehousing” of horses appear to be purported challenges to
actions BLM has taken, whereas the allegations that BLM failed to maintain an
ecological balance in Nevada, failed to remove horses upon request, and failed to
conduct gathers upon request, appear to be alleged failures to act. Regardless of
which way they are considered, none of the “decisions and actions” NACO references
amount to a final agency action or to a reviewable failure to act under the APA.
A. NACO’s First Amended Complaint Does Not Challenge Any Final Agency Action
The Amended Complaint makes numerous references to inventories and
AMLs, but none of these references challenge a final agency action. See ER16-17, 28-
30, 37, 40, 41-42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 55, 63, 66, and 67 (Am. Cmplt.
¶¶ 2(c), 7, 12(a)(ii)-(iv), 23(a), 26, 29(a) and (e), 33, 34, 36, 40, 41(a), 42, 43, 46, 47, 52,
59, 80, 91, 94(a), 94(b)). In order for an agency action to be final, the action must (1)
“mark the ‘consummation’ of the agency’s decisionmaking process”, and (2) “be one
by which ‘rights or obligations have been determined,’ or from which ‘legal
consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 178 (1997); Or. Nat. Desert
Ass’n v. U.S. Forest Ser., 465 F.3d 977, 982 (9th Cir. 2006).
Wild Horse Act inventories are merely planning tools BLM uses to decide
whether to take final agency actions, such as individual gathers of wild horses and
burros. See In Def. of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054 (9th Cir. 2014)
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(reviewing an individual gather). The Act provides that BLM “shall maintain a current
inventory of wild free-roaming horses and burros on given areas of the public lands”
in order to “make determinations as to whether and where an overpopulation exists
and whether action should be taken to remove excess animals,” as well as to
determine AMLs, and decide whether AMLs should be achieved by the removal or
destruction of excess animals, or other options, including “natural controls on
population levels.” 16 U.S.C. § 1333(b)(1). The inventories are one of several sources
of information on which BLM must base any determination “that an overpopulation
exists on a given area of the public lands and that action is necessary to remove excess
animals,” whereupon the Agency “shall immediately remove excess animals from the
range so as to achieve [AMLs].” 16 U.S.C. § 1333(b)(2). Stated differently, they are
one of many activities undertaken in anticipation of possible subsequent final agency
action for management of wild horses. See Ecology Ctr. v. U.S. Forest Serv., 192 F.3d 922,
925-26 (9th Cir. 1999) (forest-wide monitoring and reporting duties, even when
required by a Forest Plan, are not final agency action); Northcoast Envtl. Ctr. v.
Glickman, 136 F.3d 660, 669 (9th Cir. 1998) (preliminary research and development
efforts do not constitute agency action under the APA). Even if an inventory could
constitute final agency action, NACO fails to identify a single inventory that is in
violation of the Wild Horse Act.
NACO’s numerous references to AMLs also do not challenge final agency
action because NACO does not identify any final agency action in which BLM
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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.
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Here, NACO asks for judicial review at an even greater level of abstraction.
Such review would frustrate the “principal purpose of the APA limitations” addressed
in NWF to “protect agencies from undue judicial interference with their lawful
discretion, and to avoid judicial entanglement in abstract policy disagreements which
courts lack both expertise and information to resolve.” NWF, 542 U.S. at 66. The
policy choice is significantly more difficult than NACO suggests, because Congress
has repeatedly prohibited BLM from using appropriated funds to euthanize healthy
excess horses, and the supply of wild horses significantly outweighs adoption demand.
Further, Congress has repeatedly appropriated funds for the housing of excess animals
on private land. See In Def. of Animals v. U.S. Dep’t. of the Interior, 909 F.Supp. 2d 1178,
1194 (E.D. Ca. 2012), aff’d, 751 F.3d 1054 (9th Cir. 2014). Among the information
missing in the context of NACO’s programmatic attack is the location of the
pasturing. See In Def. of Animals, 751 F.3d at 1194-95 (upholding, in the context of a
challenge to an individual gather, a BLM decision to utilize private long-term holding
in part because, while the Act prohibits BLM from relocating animals to areas of the
public lands where they did not exist in 1971, it contains no similar prohibition against
relocation to private lands). Id. at 1194.
Further, and as with NACO’s allegations concerning inventories and AMLs,
the allegations regarding the “warehousing” of horses do not identify any particular
instance of the practice, let alone actually challenge a single final agency action, such
as an individual gather, in which BLM “warehoused” wild horses. Compare In Def. of
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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
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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
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doing, NACO materially misrepresents the holding of SUWA and makes an
untenable argument that flies in the face of binding Supreme Court precedent.
Plainly, the ecological balance mandate directs BLM to achieve a goal which does not
constitute the “whole or a part of an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof,” and therefore cannot be compelled under § 706(1).
SUWA, 542 U.S. at 62-64 (quoting 5 U.S.C. § 551(13)). The fact that Congress
directed BLM to consider certain opinions in achieving the goal does not alter that
conclusion, nor is it actionable on its own, as “consideration” is likewise not an
“agency action” within the meaning of § 551(13). See Ctr. for Biological Diversity v.
Veneman, 394 F.3d 1108, 113 (9th Cir. 2003) (applying SUWA to hold that the Forest
Service’s alleged failure to consider rivers potentially eligible for Wild Scenic and
Rivers Act designation while forest-planning did not assert a failure to take a discrete
agency action, such that the plaintiffs lacked statutory standing under the APA).
Nor does § 706(1) provide for review of NACO’s allegations that BLM has
generally failed to conduct gathers, to dispose of excess horses removed from the
public lands, or to remove horses from private property. See ER29, 40-41, 43-44, 46-
47, 49-51, 56-57, and 63-64 (Am. Cmplt ¶¶ 12(a)(iii); 26, 27, 29, 33, 41, 45, 46, 47, 62,
81). While individual gathers of excess horses constitute final agency action, they
cannot be compelled because the Wild Horse Act gives BLM substantial discretion in
deciding whether to conduct them. Accordingly, they fail to meet SUWA’s second
prong that the agency action be required. 542 U.S. at 64.
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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
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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)).
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accepted canons of statutory interpretation, [the Court] must ... mak[e] every effort
not to interpret a provision in a manner that renders other provisions of the same
statute inconsistent, meaningless or superfluous.” Boise Cascade Corp. v. U.S. Envtl.
Prot. Agency, 942 F.2d 1427, 1432 (9th Cir.1991); In re Inkjet Printer Litigation, 716 F.3d
1173, 1184 (9th Cir. 2013) (same). NACO’s interpretation is also in tension with other
provisions of the Act, including the directive that “[a]ll management activities shall be
at the minimal feasible level.” 16 U.S.C. § 1333(a).
At bottom, the discretion granted to BLM in the Wild Horse Act is substantial
and consistent with the discretion Congress granted to BLM generally when it
directed the Agency to manage public lands under multiple-use principles. As the
Tenth Circuit has aptly stated, multiple-use principles “breathe discretion at every
pore.” Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1268 (10th Cir. 2011) (quoting
Perkins v. Bergland, 608 F.2d 803, 806–07 (9th Cir. 1979) (internal quotations and
citation omitted)). Moreover, if a court could compel BLM to take whatever action
someone requests, it would necessarily be specifying the content of the action, which
is impermissible. SUWA, 542 U.S. at 65. The Court has “no authority to ‘order the
agency to reach a particular result,’ or to compel discretionary agency action.”
Gardner, 638 F.3d at 1224 (quoting Mt. St. Helens Mining & Recovery Ltd. P'ship v. United
States, 384 F.3d 721, 728 (9th Cir. 2004)) (citing Alvarado v. Table Mountain Rancheria,
509 F.3d 1008, 1019–20 (9th Cir. 2007).
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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
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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)).
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ground, as it is clear that an APA suit which fails to challenge a final agency action or
a failure to act must be dismissed. See Pebble Ltd. P’ship v. United States Envtl. Prot.
Agency, 604 Fed.Appx. 623, 625-26 (9th Cir. 2015) (holding that a lack of final agency
action deprives federal courts of subject matter jurisdiction); compare id. at 626
(Watford, J., concurring) (questioning whether the dismissal should have instead been
for failure to state a claim, while acknowledging the basis is “of no consequence in
this case.”). “We may affirm a district court’s judgment on any ground supported by
the record, whether or not the decision of the district court relied on the same
grounds or reasoning we adopt.” Alvarado, 509 F.3d at 1019; (quoting Atel Fin. Corp.
v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir.2003) (per curiam)).
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
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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.”).
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Coos County Board of Comm’rs v. Kempthorne, 531 F.3d 792, 802-803 (9th Cir. 2008)
(emphasis added) (internal citations omitted) (affirming district court’s dismissal
where Endangered Species Act did not impose a discrete, required duty to delist a
species based on certain information). On numerous occasions in addition to Coos
County, this Court has affirmed dismissals based on a lack of a final agency action or
failure to act on the ground that the district court did not have subject matter
jurisdiction. See San Luis Unit Producers v. United States, 709 F.3d 798, 801, 804, 808 (9th
Cir. 2013); Mamigonian v. Biggs, 710 F.3d 936, 941-42 (9th Cir. 2013); Rattlesnake Coalition
v. U.S. Envtl. Prot. Agency, 509 F.3d 1095, 1104-05 (9th Cir. 2007); Alvarado v. Table
Mountain Rancheria, 509 F.3d 1008, 1019–20 (9th Cir. 2007); Gros Ventre Tribe v. United
States, 469 F.3d 801, 814 (9th Cir. 2006); Ctr. for Biological Diversity v. Veneman, 394 F.3d
1110, 1114. In other instances, the Court has treated the missing element as one of
statutory standing. See Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220,
1229-30 (9th Cir. 2008); ONRC Action v. BLM, 150 F.3d 1132, 1135, 1140 (9th Cir.
1998); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1353–54 (9th Cir.
1994). Here at least, the distinction is immaterial, as there is no doubt that an APA
suit which fails to challenge a final agency action or a failure to act cannot proceed.
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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.
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In analogous circumstances, this Court has found that arguments were waived. See
Martinez-Serrano v. United States Immigation and Naturalization Serv., 94 F.3d 1256, 1259-
60 (9th Cir. 1996) (appellant waived issue that was mentioned only in the opening
brief’s statement of the case); Larin Corp. v. Mueller, 364 Fed.Appx. 380, 383 (9th Cir.
2010) (appellant waived issue listed only in the opening brief’s statement of issues;
undeveloped passing assertion also insufficient to raise argument on appeal). The
Court should accordingly decline to consider any arguments on these issues NACO
might present for the first time in its reply brief. Ellingson v. Burlington N., Inc., 653
F.2d 1327, 1332 (9th Cir.1981) (declining to consider attorneys’ fee issue advanced for
the first time in a reply brief, because “[a]n issue advanced only in reply provides the
appellee no opportunity to meet the contention.”); see also United States v. Hong Van
Nguyen, 303 Fed.Appx. 441, 444 (9th Cir. 2008) (declining to consider evidentiary
standard issue raised in reply brief that appellant had neither raised to the district
court nor presented 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 dismissed it. In a single paragraph of the First Amended
Complaint, NACO asserts that “[t]he facts incorporated into this Claim for Relief also
establish that Defendants violated the Due Process rights of Plaintiffs * * * in that
Defendants failed to follow their own procedures contained both in the Act and in 43
CFR Part 4700. ER64 ¶ 83. This fails to state a claim on which relief can be granted
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for multiple reasons. First, it is a conclusory allegation of law that is insufficient to
defeat a motion to dismiss. See Dell Los Reyes v. Southwest Gas Corp., 319 Fed.Appx.
639, 641 (9th Cir. 2009); Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001)
(same). Second, the wild horses and burros protected by the Wild Horse Act are not
instrumentalities of the federal government and as such, are not capable of
effectuating a governmental taking of private property. See Christy v. Hodel, 857 F.2d
1324, 1334-45 (9th Cir. 1988) (holding that Endangered Species Act regulations
protecting grizzly bears did not effectuate a taking and explaining that “[n]umerous
cases have considered, and rejected, the argument that destruction of private property
by protected wildlife constitutes a governmental taking.”); Colvin Cattle Co. v. United
States, 468 F.3d 803, 809 (Fed. Cir. 2006) (‘because wild horses are outside the
government’s control, they cannot constitute an instrumentality of the government
capable of giving rise to a taking.”). Finally and as the Fifth Circuit recently
confirmed, procedural due process claims arising under the APA must identify a final
agency action leading to the alleged deprivation. Belle Co., L.L.C. v. United States Army
Corps of Engingeers, 761 F.3d 383, 395-96 (5th Cir. 2014). For the reasons previously
explained, NACO does not challenge any final agency action in this lawsuit.
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CONCLUSION
The district court’s judgment should be affirmed.
Respectfully submitted,
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 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]
FEBRUARY 2016 90-8-6-07097
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Statement of Related Cases
As far as the undersigned counsel is aware, no related case is pending in this
Court.
s/ Anna T. Katselas ANNA T. KATSELAS Attorney for Federal Defendants-Appellees February 12, 2016
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s/ Anna T. Katselas ANNA T. KATSELAS Attorney for Federal Defendants-Appellees February 12, 2016
Case: 15-15620, 02/12/2016, ID: 9864214, DktEntry: 28, Page 55 of 56
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Certificate of Service
I hereby certify that on February 12, 2016, I served the foregoing Answering
Brief for the Federal Defendants-Appellees with the Clerk of Court of the United
States Court of Appeals for the Ninth Circuit using the appellate ECF system, and
thus served the following counsel of record who are registered ECF members:
Michael N. Beede [email protected] Julie Cavanaugh-Bill [email protected] William Stewart Eubanks II [email protected] John W. Hoffman [email protected] William Nicholson Lawton [email protected] Katherine Anne Meyer [email protected] Mark Lee Pollot [email protected]
/s/ Anna T. Katselas ANNA T. KATSELAS Attorney
U.S. Department of Justice Environment & Natural Resources Division
Case: 15-15620, 02/12/2016, ID: 9864214, DktEntry: 28, Page 56 of 56