Leigh v. Salazar et al, No. 3:2011cv00608 - Document 118 (D. Nev. 2014)

Court Description: ORDER granting Defendants' 84 motion for judgment on the pleadings. The Clerk shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 01/03/2014. (Copies have been distributed pursuant to the NEF - KR)
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Leigh v. Salazar et al Doc. 118 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) SALLY JEWELL, et al., ) ) Defendants. _________________________________ ) LAURA LEIGH, 3:11-cv-00608-HDM-WGC ORDER 16 Before the court is the defendants’ second motion to dismiss, 17 or in the alternative motion for judgment on the pleadings (#84). 18 Defendants argue that the court lacks subject matter jurisdiction 19 over plaintiff’s claims in this action. Plaintiff has opposed 20 defendants’ motion (#93), and defendants have replied (#101). 21 Following the court’s order granting plaintiff leave to file a 22 “fourth amended complaint,” the court construed the outstanding 23 motion to dismiss as a motion to dismiss the fourth amended 24 complaint and granted the parties leave to file supplemental 25 briefs. On September 19, 2013, defendants filed their supplemental 26 brief (#106). Plaintiff has responded (#107), and defendants have 27 replied (#114). 28 1 Dockets.Justia.com 1 Once the pleadings have closed – “but early enough not to 2 delay trial — a party may move for judgment on the pleadings.” 3 Fed. R. Civ. P. 12(c). 4 based on a lack of subject matter jurisdiction is analyzed under 5 the same standard applied to motions to dismiss under Federal Rule 6 of Civil Procedure 12(b)(1). 7 at *1 (D. Or. 2012); 5C Charles A. Wright & Arthur R. Miller, 8 Federal Practice and Procedure, § 1367, at 221 (3d ed. 2004). 9 Under Rule 12(b)(1), the plaintiff bears the burden of establishing A motion for judgment on the pleadings Or. Wild v. Connor, 2012 WL 3756327, 10 subject matter jurisdiction. 11 F.3d 1134, 1135 (9th Cir. 1999). 12 has subject matter jurisdiction, the court may consider evidence 13 outside of the complaint. 14 1035, 1039 (9th Cir. 2004). 15 Hexom v. Or. Dep’t of Transp., 177 In determining whether the court Safe Air for Everyone v. Meyer, 373 F.3d Plaintiff’s complaint asserts that defendants have violated 16 the Wild Free-Roaming Horse and Burros Act (“Wild Horse Act”), 16 17 U.S.C. §§ 1331 et seq., accompanying regulations, and their own 18 internal policies, by conducting roundups of excess wild horses in 19 an inhumane manner. 20 Interior is tasked with protecting and managing the wild horses on 21 the lands it controls. 22 for the Secretary, the Bureau of Land Management (“BLM”) has a 23 “great deal of discretion” in carrying out those duties. 24 Prot. Ass’n, Inc. v. Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 25 1975) (citing legislative history). 26 up and remove from the range “excess” wild horses, as defined by 27 the statute, and requires that all such roundup activities be 28 conducted “humanely.” Under the Wild Horse Act, the Secretary of the Id. §§ 1332(a),(e), 1333(a). As designate Am. Horse The Act requires BLM to round 16 U.S.C. § 1333(b)(2)(B) (requiring that 2 1 horses be “humanely captured and removed” and provided “humane 2 treatment and care (including proper transportation, feeding, and 3 handling)”); see also 16 U.S.C. § 1338a (providing that helicopter 4 use be “in accordance with humane procedures prescribed by the 5 Secretary”); 43 C.F.R. § 4740.1 (providing that helicopter use be 6 “conducted in a humane manner”). 7 Judicial review of plaintiff’s claims is governed by the 8 Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. 9 Under the APA, the court must hold unlawful and set aside agency 10 “action, findings and conclusions” that are “arbitrary, capricious, 11 an abuse of discretion, or otherwise not in accordance with law” or 12 “without observance of procedure required by law,” id. § 13 706(2)(A),(D), and “compel agency action unlawfully withheld or 14 unreasonably delayed,” id. § 706(1). 15 to review under the APA includes “[a]gency action made reviewable 16 by statute and final agency action for which there is no other 17 adequate remedy in a court.” 18 Agency action that is subject 5 U.S.C. § 704. Plaintiff does not argue that the actions she challenges are 19 reviewable by statute. The question is therefore whether she 20 challenges final agency action. 21 agency action, the court lacks subject matter jurisdiction to 22 consider her claims. 23 States, 709 F.3d 798, 801 (9th Cir. 2013). If she has not challenged final See San Luis Unit Food Producers v. United 24 “Agency action is defined to include the whole or a part of an 25 agency rule, order, license, sanction, relief, or the equivalent or 26 denial thereof, or failure to act.” 27 Alliance, 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)) 28 (hereinafter cited and referred to as SUWA). 3 Norton v. S. Utah Wilderness An agency’s failure 1 to act may be challenged only where it has failed to take a 2 discrete action it is required by law to take. 3 an agency action to be final, the action must (1) mark the 4 consummation of the agency’s decisionmaking process and (2) be one 5 by which rights or obligations have been determined, or from which 6 legal consequences will flow.” 7 Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (quoting Bennett v. 8 Spear, 520 U.S. 154, 178 (1997)) (internal quotation marks 9 omitted). Id. at 62-63. “For Or. Natural Desert Ass’n v. U.S. “The core question is whether the agency has completed 10 its decisionmaking process, and whether the result of that process 11 is one that will directly affect the parties.” 12 Customers of Nw. Utils. v. Bonneville Power Admin., 408 F.3d 638, 13 646 (9th Cir. 2005)). Id. (quoting Indus. To decide whether plaintiff’s complaint challenges final 14 15 agency action subject to review under the APA, the court must first 16 clarify what claims the complaint contains, and what claims it does 17 not.1 18 The gravamen of plaintiff’s fourth amended complaint is that 19 the wild horse gathers in the Triple B Complex and the Jackson 20 Mountain Herd Management Area have been conducted inhumanely. 21 Specifically, plaintiff alleges that defendants have failed to 22 correct the inhumane actions of its contractor by enforcing the 23 legal and contractual requirements in place to ensure that horses 24 are humanely gathered. 25 that horses have been treated inhumanely because the contractor 26 has: (1) flown helicopters too close to the horses and run foals With respect to Triple B, plaintiff argues 27 28 1 The operative complaint in this action is plaintiff’s “fourth amended complaint,” filed on October 14, 2013 (#113). 4 1 for too long; (2) failed to ensure the horses had adequate feed and 2 water in temporary holding; (3) failed to control dust from the 3 rotor wash; and (4) temporarily held unweaned foals away from their 4 mothers for up to ten hours. 5 plaintiff argues that horses have been treated inhumanely by (1) 6 the use of helicopters during the foaling season; and (2) the use 7 of bait and water trapping. With respect to Jackson Mountain, 8 Plaintiff’s bait and water trapping claim was added to the 9 complaint pursuant to the leave granted by the court to include 10 “any additional factual allegations related to inhumane conduct at 11 any roundups conducted pursuant to the Jackson Mountain and 12 Triple B EAs, including bait-trapping at Jackson Mountain.” 13 #105 (Order Dated July 23, 2013)). 14 plaintiff leave to amend her complaint to include a claim relating 15 to bait and water trapping in Jackson Mountain. 16 (Doc. The court did not grant Plaintiff’s fourth amended complaint contains additional 17 allegations and claims that were not authorized by the court’s 18 order granting her leave to amend. 19 assertions regarding the limited observation of the wild horses 20 during roundups and defendants’ failure to “disclose the 21 disposition of animals during the removal and post removal 22 process,” as well as conclusory assertions that defendants may not 23 be following a mandated order of preference in conducting the 24 roundups. 25 Specifically, it contains (Pl. Fourth Am. Compl. 4). Finally, in her opposition, plaintiff also asserts that her 26 complaint contains a claim that the defendants failed to consider 27 humane gather alternatives when authorizing the roundups. 28 even a generous reading of her complaint does not suggest such a 5 However, 1 claim. 2 such claim in her complaint. 3 plaintiff’s several opportunities to amend her complaint, the 4 plaintiff will not be granted leave to file a claim relating to the 5 defendants’ alleged failures to consider humane gather 6 alternatives. 7 Moreover, plaintiff was not granted to leave to include any At this late date, and given Therefore, plaintiff’s complaint challenges the actions and/or 8 failures to act of defendants with respect to their contractor(s)’ 9 conduct during the wild horse roundups in Triple B and Jackson 10 Mountain. Plaintiff brings her claim pursuant to § 706(2) – under 11 which the court must set aside unlawful agency action. 12 she frames her claim as a failure to act, which is cognizable under 13 § 706(1) – compelling agency action unlawfully withheld. 14 lack of clarity of plaintiff’s position, the court will analyze her 15 claim under both sections. However, Given the 16 A. Affirmative Action – § 706(2) 17 To be subject to review under § 706(2), defendants’ actions 18 must be “final agency action.” 19 conduct of the gathers is agency action that marks the 20 “consummation” of the decisionmaking process and is one from which 21 legal rights or obligations have been determined or from which 22 legal consequences will flow. 23 issue. 24 The question here is whether the Two Ninth Circuit address this In Wild Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir. 25 2013), the plaintiffs challenged the Fish and Wildlife Service’s 26 actions in closing gates at a dam, which diverted water and 27 obstructed fish passage through certain waterways. 28 Circuit held that the closing of the gates was not challengeable 6 The Ninth 1 final agency action for two reasons. First, the court held that it 2 was not “a discrete agency action that fits within the APA’s 3 definition of that term.” 4 the “act of closing the gates . . . has immediate physical 5 consequences, such action is not fairly analogous to a ‘rule, 6 order, license, sanction, [or] relief.” 7 held the “individual acts of closing gates . . . do not ‘mark the 8 consummation of the agency’s decisionmaking process . . . because 9 they constitute day-to-day operations that merely implement Id. at 801. The court noted that while Id. Second, the court 10 operational plans.” 11 requirement of final agency action precludes [the court from] 12 undertaking a general judicial review of [an agency’s] day-to-day 13 operations.” 14 U.S. Forest Serv., 314 F.3d 1146 (9th Cir. 2003), vacated on other 15 grounds, 542 U.S. 917 (2004) (holding that the agency’s ‘routine 16 maintenance work’ on federal lands is not final agency action 17 because these activities ‘implement [the agency’s] travel 18 management and forest plans’ for the lands at issue)). 19 Id. The court noted that “the APA’s Id. at 802 (citing Mont. Wilderness Ass’n, Inc. v. In Oregon Natural Desert Association v. U.S. Forest Service, 20 465 F.3d 977 (9th Cir. 2006), the Forest Service argued that annual 21 operating instructions (“AOIs”) issued to permittees who grazed 22 livestock on national forest land were not final agency action 23 because the AOIs merely implemented decisions set forth in longer 24 term management plans. Id. at 979-82. 25 It held that the AOIs, which were made part of the grazing permits 26 and governed the permit holder’s operations for the following year, 27 were “licenses” and therefore “agency action.” 28 It further held that rather than merely implementing decisions the 7 The Ninth Circuit disagreed. Id. at 980, 983. 1 Forest Service had already made, the AOIs were also “final” because 2 in imposing the terms and conditions that would govern permittees 3 for the following year, the AOIs marked the consummation of the 4 Forest Service’s annual decisionmaking process and were actions “by 5 which rights or obligations” were determined “or from which legal 6 consequences” would flow. 7 Id. at 984-89. Here, the consummation of the decisionmaking process was the 8 decision to conduct a roundup, embodied in the Environmental 9 Assessment (“EA”). The actions taken during the roundup merely 10 implement the EA. No further decisions, such as the setting of 11 rights and obligations that were evident in Oregon Natural Desert 12 Association, were made following the EA, nor were any actions taken 13 that fit within the definition of agency action in 5 U.S.C. § 551. 14 Because the conduct of the wild horse gathers is not final agency 15 action, the court lacks subject matter jurisdiction to consider 16 plaintiff’s claim under § 706(2). See San Luis Unit Food Producers 17 v. United States, 709 F.3d 798, 801 (9th Cir. 2013). 18 B. Failure to Act – § 706(1) 19 Plaintiff also frames her claim as a failure to act. 20 Fourth Am. Compl. 19) (asserting that defendants have violated 21 their legal duties by failing “to enforce the humane laws of the 22 United States” – laws, policies, and regulations – to correct, 23 modify, or stop the contractors’ inhumane actions)). 24 insists that a failure to act claim may be properly asserted under 25 § 706(2), regardless of the merit of that claim, a failure to act 26 claim would be cognizable under § 706(2) only where the failure to 27 act effectively resulted in “final agency action.” 28 U.S. Dep’t of the Interior, 2012 WL 3070269 (E.D. Cal. 2012). Cf. 8 (See Pl. Although she See Franco v. 1 Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 926 (9th 2 Cir. 1999) (“This court has refused to allow plaintiffs to evade 3 the finality requirement with complaints about the sufficiency of 4 an agency action ‘dressed up as an agency's failure to act.’”). 5 While the defendants’ failure to act may have impacted the conduct 6 of the wild horse roundups, the conduct of the wild horse roundups 7 is not “final agency action.” 8 more cognizable under § 706(2) when framed as a failure to act. 9 Therefore, plaintiff’s claim is no Regardless, the Supreme Court has suggested that a failure to 10 act claim should be brought under § 706(1). 11 (“The APA provides relief for a failure to act in § 706(1)”). Under 12 § 706(1), an agency’s failure to act may be reviewed under the APA 13 only where the agency has failed to take a discrete action it is 14 required by law to take. 15 SUWA, 542 U.S. at 63 SUWA, 542 U.S. at 62-63. In SUWA, the plaintiffs alleged that the BLM had failed to 16 prevent degradation of wilderness study areas by managing off-road 17 vehicle use and that this violated its duty under statute to manage 18 such areas “in a manner so as not to impair the suitability of such 19 areas for preservation as wilderness.” 20 Court held that the statute was mandatory, it also held that 21 because the duty to not impair was a broad mandate that allowed the 22 agency discretion in how to achieve it, it was not sufficiently 23 specific, or discrete, to be enforceable under the APA. 24 further stated that the limitation of challenges to “discrete” 25 actions is done “to protect agencies from undue judicial 26 interference with their lawful discretion, and to avoid judicial 27 entanglement in abstract policy disagreements which courts lack 28 both expertise and information to resolve.” 9 542 U.S. at 59. Id. at 66. While the The Court The court 1 went on to state: If 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. 2 3 4 5 6 Id. at 66-67. 7 Here, plaintiff alleges that defendants failed to ensure that 8 the roundups were conducted “humanely” in accordance with 16 U.S.C. 9 § 1333, 16 U.S.C. § 1338a, 47 C.F.R. § 4700.0-5, and 47 C.F.R. § 10 4740.1. “Humane” is defined under the statute as “handling 11 compatible with animal husbandry practices accepted in the 12 veterinary community, without causing unnecessary stress or 13 suffering to a wild horse or burro.” 43 C.F.R. § 4700.0-5(e). 14 “Inhumane treatment means any intentional or negligent action or 15 failure to act that causes stress, injury, or undue suffering to a 16 wild horse or burro and is not compatible with animal husbandry 17 practices accepted in the veterinary community.” Id. § 4700.0- 18 5(f). 19 The court concludes that the words “humane” and “inhumane,” as 20 defined and used in the statute and regulations imposes a broad 21 rather than discrete mandate. As such, it affords BLM discretion 22 in conducting the wild horse roundups. The definition is not 23 sufficiently specific that it could be enforced by the courts 24 without interference in defendants’ day-to-day operations. 25 Accordingly, plaintiff’s claim that defendants have failed to 26 ensure the gathers are conducted “humanely” is not final agency 27 action that may be challenged under the APA. 28 10 Insofar as her claim 1 is based on the failure to ensure “humane” gathers, the court lacks 2 subject matter jurisdiction and plaintiff’s claims must be 3 dismissed. 4 To the extent plaintiff may have alleged that defendants’ 5 failure to regulate the use of helicopters in accordance with 16 6 U.S.C. § 1338a may be challenged under the APA, plaintiff has 7 failed to provide any regulations or other “humane procedures 8 prescribed by the Secretary” that are sufficiently specific to be 9 enforceable in this court. 10 Finally, with respect to plaintiff’s claim that defendants 11 have failed to enforce the provisions of their contract with their 12 contractor, incorporated into the EA as appendix II, certain of 13 these provisions are substantially more specific – and thus 14 discrete – than the broad statutory mandates and regulations 15 discussed above. 16 enforce) its own internal policies and rules only where there is 17 some indication that the agency intended to be bound by the policy 18 or rule. 19 However, an agency may be required to follow (and “To be judicially enforceable, a pronouncement must prescribe 20 substantive rules – not interpretive rules, general statements of 21 policy or rules of agency organization, procedure or practice, and 22 must have been promulgated pursuant to a specific statutory grant 23 of authority and in conformance with the procedural requirements 24 imposed by Congress.” 25 Cir. 2003). 26 See Lowry, 329 F.3d at 1022; see also Or. Natural Res. Council v. 27 Devlin, 776 F. Supp. 1440, 1447 (D. Or. 1991) (“Manual provisions 28 and internal agency guidelines for implementing statutes are Lowry v. Barnhart, 329 F.3d 1019, 1022 (9th Agency guidance manuals are generally unenforceable. 11 1 generally not binding on agencies.”). 2 has not ruled out that a less formal agency plan may “itself create 3 a commitment binding on the agency,” if there is “clear indication 4 of binding commitment in the terms of the plan.” SUWA, 542 U.S. at 5 69. 6 However, the Supreme Court Plaintiff has failed to establish that the contractual 7 provisions are substantive rules that were promulgated pursuant to 8 specific statutory authority and in conformance with procedural 9 requirements set by Congress. Accordingly, plaintiff has failed to 10 carry her burden of establishing subject matter jurisdiction with 11 respect to this aspect of her claim, as well. 12 In opposition to the defendants’ motion, plaintiff raises a 13 number of arguments that the court finds to be without merit. 14 First, plaintiff argues that defendants’ motion requests 15 relief already denied in conjunction with their earlier motion to 16 dismiss, at least with respect to Jackson Mountain. 17 arguments raised in the instant motion to dismiss are entirely 18 different from those raised in the defendants’ earlier motion to 19 dismiss. 20 any time, defendants’ motion is properly made. 21 However, the Moreover, as subject matter jurisdiction may be raised at Second, plaintiff argues that the defendants’ motion is 22 untimely. However, a Rule 12(c) motion may be filed at any time as 23 long as it does not unduly delay proceedings. 24 filed their motion just a short time before this matter was to be 25 submitted for summary judgment, the filing was prompted by the 26 plaintiff’s discovery requests, which defendants believe are 27 improper given the nature of this action. 28 has not unduly delayed these proceedings. 12 While defendants Accordingly, the motion 1 Third, plaintiff makes several arguments as to why her 2 complaint states a claim sufficient to survive dismissal under 3 Federal Rule of Civil Procedure 12(b)(6). 4 moved to dismiss plaintiff’s complaint under Rule 12(b)(6), so 5 these arguments are irrelevant. 6 Defendants have not Finally, plaintiff’s opposition relies heavily on her proposed 7 third amended complaint, which the court has not allowed plaintiff 8 to file. 9 amended complaint” are irrelevant. 10 Accordingly, all arguments made in reliance on the “third In accordance with the foregoing, the defendants’ motion for 11 judgment on the pleadings (#84) is hereby GRANTED. 12 the court shall enter judgment accordingly. 13 IT IS SO ORDERED. 14 The clerk of DATED: This 3rd day of January, 2014. 15 16 ____________________________ UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 13