Garfield County et al v. Biden et al, No. 4:2022cv00059 - Document 180 (D. Utah 2023)

Court Description: MEMORANDUM DECISION AND ORDER granting with prejudice 113 Motion to Dismiss for Failure to State a Claim; granting with prejudice 114 Motion to Dismiss for Failure to State a Claim. Signed by Judge David Nuffer on 8/11/23 (alt)

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Garfield County et al v. Biden et al Doc. 180 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7687 Page 1 of 28 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH GARFIELD COUNTY, UTAH, a Utah political subdivision; KANE COUNTY, UTAH, a Utah political subdivision; THE STATE OF UTAH, by and through its Governor, SPENCER J. COX, and its Attorney General, SEAN D. REYES; Plaintiffs, MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS, dkt no. 113, and MOTION TO DISMISS, dkt no. 114 Case No. 4:22-cv-00059-DN-PK ZEBEDIAH GEORGE DALTON; BLUERIBBON COALITION; KYLE KIMMERLE; and SUZETTE RANEA MORRIS; Consolidated Plaintiffs, District Judge David Nuffer Magistrate Judge Paul Kohler v. JOSEPH R. BIDEN, JR. in his official capacity as President of the United States; DEB HAALAND, in her official capacity as Secretary of Interior; DEPARTMENT OF THE INTERIOR; TRACY STONE-MANNING, in her official capacity as Director of the Bureau of Land Management; BUREAU OF LAND MANAGEMENT; TOM VILSACK, in his official capacity as Secretary of Agriculture; DEPARTMENT OF AGRICULTURE; RANDY MOORE, in his official capacity as Chief of the Forest Service; FOREST SERVICE; Defendants, HOPI TRIBE, NAVAJO NATION, PUEBLO OF ZUNI, and UTE MOUNTAIN UTE TRIBE; Intervenor-Defendants, SOUTHERN UTAH WILDERNESS ALLIANCE, CENTER FOR BIOLOGICAL DIVERSITY, GRAND CANYON TRUST, GREAT OLD BROADS FOR WILDERNESS, NATIONAL PARKS CONSERVATION ASSOCIATION, NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB, THE WILDERNESS SOCIETY, WESTERN WATERSHEDS PROJECT, and WILDEARTH GUARDIANS. Intervenor-Defendants. Dockets.Justia.com Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7688 Page 2 of 28 CONTENTS CONTENTS .................................................................................................................................... 2 BACKGROUND ............................................................................................................................ 2 Introduction ......................................................................................................................... 2 Procedural History .............................................................................................................. 4 The Antiquities Act ............................................................................................................. 7 The Bears Ears and Grand Staircase-Escalante National Monuments ............................... 9 STANDARD OF REVIEW .......................................................................................................... 12 DISCUSSION ............................................................................................................................... 12 Judicial review of these two Proclamations is not permitted without a waiver of sovereign immunity ............................................................................................................... 13 Plaintiffs’ claims are statutory challenges, not constitutional challenges............. 13 President Biden’s actions are not within the ultra vires exception to sovereign immunity ................................................................................................... 17 The Memoranda are not “final agency action” reviewable under the APA ..................... 19 The Memoranda do not meet the three requirements for “final agency action” ... 21 Individual Plaintiffs do not have standing to bring the claim for denial of permits ......... 26 CONCLUSION ............................................................................................................................. 28 ORDER ......................................................................................................................................... 28 BACKGROUND Introduction “The creation of a national monument is of no small consequence.” 1 When President Jimmy Carter withdrew 56 million acres in Alaska to be national monuments in 1978, 2 Alaskans protested and broke “over 25 Park Service rules in a two-day period.” 3 Utahns protested when President Clinton withdrew the Grand Staircase-Escalante National Monument. The signing ceremony took place at the South Rim of the Grand Canyon, Arizona “[t]o avoid protests that would mar a photo opportunity.” 4 “[S]olemn and angry,” Kanab, Utah residents wore black arm 1 Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979, 980 (2021) (Roberts, C.J., statement respecting cert denial). 2 Proclamation Nos. 4611-4627, 3 C.F.R. 69-104 (1978 Comp.). 3 Sturgeon v. Frost, 577 U.S. 424, 430 (2016). 4 New Reserve Stirs Animosities in Utah, N.Y. Times, Oct. 13, 1996. 2 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7689 Page 3 of 28 bands, released 50 black balloons, and bore signs saying, “Shame on you Clinton.” 5 Northeastbased commercial fishing associations sued federal officials for “injury from the restrictions on commercial fishing” imposed by the Northeast Canyons and Seamounts Marine National Monument. 6 That monument is “an area roughly the size of Connecticut that sits 130 miles off the coast of Cape Cod.” 7 In 2020, the University of Hawaii and the Pacific Islands Fisheries Science Center published their results of the economic impact of Papah naumoku kea Marine National Monument. 8 President Bush proclaimed the monument, 139,793 square miles, in 2006 9 and President Obama expanded it to 442,781 square miles in 2016, 10 resulting in millions of dollars of lost fishing revenue in the first sixteen months after the expansion. 11 “The President’s unique status under the Constitution distinguishes him from other executive officials,” 12 causing him to have “unreviewable Presidential discretion.” 13 Chief Justice Roberts recognized “[t]he broad authority that the Antiquities Act vests in the President stands in marked contrast to other, more restrictive means” used to “preserve portions of land and sea.” 14 He also pointed out that the Antiquities Act “has been transformed into a power 5 1996: Clinton Takes a 1.7 million-acre Stand in Utah, High Country News, Sep. 30, 1996; see Strong Emotions Reignited on 20th Anniversary of Utah Monument, CBS News, Sep. 18, 2016. 6 Massachusetts Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 53 (D.D.C. 2018), aff’d as modified, 945 F.3d 535 (D.C. Cir. 2019). 7 Obama Creates Atlantic Ocean’s First Marine Monument, N.Y. Times, Sep. 15, 2016. Hing Ling Chan, Economic Impacts of Papah naumoku kea Marine National Monument Expansion on the Hawaii Longline Fishery, Marine Policy, Vol. 115 (2020). 8 9 Proclamation No. 8031, 71 Fed. Reg. 36441, 36444 (June 2006). 10 Proclamation No. 9478, 81 Fed. Reg. 60227, 60230 (Aug. 2016). 11 Chan, Economic Impacts at 12. 12 Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). 13 Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 113 (1948). 14 Raimondo, 141 S. Ct. at 980 (Roberts, C.J., statement respecting cert denial). 3 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7690 Page 4 of 28 without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.” 15 “How the President chooses to exercise the discretion Congress has granted him is not a matter for [a court’s] review.” 16 Instead, according to the 9th Circuit, “[w]hen Congress has wished to restrict the President’s Antiquities Act authority, it has done so expressly.” 17 Twice, Congress has responded when a president has withdrawn land as a national monument. President Franklin D. Roosevelt proclaimed the Jackson Hole National Monument, 221,610 acres, 18 on March 15, 1943. 19 In 1950, Congress aggressively responded, amending the Antiquities Act itself to prohibit “further extension or establishment of national monuments in Wyoming…except by express authorization of Congress.” 20 And later, in response to President Carter’s 1978 Alaska proclamations, Congress passed a law that prohibited “future executive branch action which withdraws more than five thousand acres, in the aggregate, of public lands within the State of Alaska.” 21 Congress knows how to restrict statutory presidential power. Otherwise, the terms of the statute control. Procedural History This action stems from two cases: Consolidated Plaintiffs against President Biden, the Secretary of the Interior, the Director of the Bureau of Land Management, the Secretary of Agriculture, the Chief of the Forest Service, the Department of the Interior, the Bureau of Land 15 Id. at 981. 16 Dalton v. Specter, 511 U.S. 462, 476 (1994). 17 Murphy Co. v. Biden, 65 F.4th 1122, 1132 (9th Cir. 2023). 18 Id. 19 Ronald F. Lee, The Antiquities Act of 1906: The Proclamation of National Monuments Under the Antiquities Act, 1906-1970, Article 8, US Department of the Interior, National Park Service (1970). 20 54 U.S.C. § 320301(d) (“Limitation on Extension or Establishment of National Monuments in Wyoming”). 21 Act of Dec. 2, 1980, Pub. L. No. 96-487, § 1326(a), 94 Stat. 2371, 2488. 4 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7691 Page 5 of 28 Management, the Department of Agriculture, and the Forest Service (“Federal Defendants”); 22 and Plaintiffs (“Utah Plaintiffs”) against Federal Defendants. 23 Federal Defendants filed an unopposed motion to consolidate 24 which was granted. 25 Intervenor-Defendants Tribal Nations (“Tribal Nations”) filed a motion to intervene as defendants, 26 which was granted soon after the cases were consolidated. 27 Additional organizations requested to be added as defendants, 28 but only the Southern Utah Wilderness Alliance and affiliates 29(“SUWA Intervenors”) were permitted to intervene. 30 Other motions to intervene await final decision, pending entry of this order. 31 Consolidated Plaintiffs 32 and Utah Plaintiffs 33 (collectively “Plaintiffs”) filed separate amended complaints. They collectively allege: 22 Civil Docket, case no. 4:22-cv-00060, Complaint filed Aug. 25, 2022. 23 Civil Docket, case no. 4:22-cv-00059, Complaint filed Aug. 24, 2022. 24 Unopposed Motion to Consolidate Civil Cases 4:22-cv-59 and 4:22-cv-60, docket no 25, filed Nov. 16, 2022. 25 Order Granting Motion to Consolidate Cases, docket no. 39, filed Nov. 30, 2022; Order for Consolidation, case no. 4:22-cv-000060, docket no. 63, filed Nov. 30, 2022. 26 Proposed Intervenors’ Second Amended Rule 24 Motion to Intervene, docket no. 29, filed Nov 22, 2022. 27 Order Granting Movants Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe’s Amended Motion to Intervene, docket no. 52, filed Dec. 8, 2022. 28 Motion to Intervene and Memorandum in Support, docket no. 27, filed Nov. 22, 2022; Rule 24 Motion of Grand Staircase Escalante Partners, Society of Vertebrate Paleontology, and Conservation Lands Foundations to Intervene as Defendants, docket no. 31, filed Nov. 23, 2022; Motion to Intervene Under Rule 24 and Memorandum of Law in Support of Utah Diné Bikéyah, Friends of Cedar Mesa, The Society of Vertebrate Paleontology Archaeology Southwest, Conservations Lands Foundation, Inc., Patagonia Works, The Access Fund, and The National Trust for Historic Preservation in the United States, docket no. 33, filed Nov. 23, 2022; Motion to Intervene as Defendants and Memorandum in Support, docket no. 34, filed Nov. 23, 2022. 29 Motion to Intervene and Memorandum in Support 1 n.2 (“Movants are Southern Utah Wilderness Alliance, Center for Biological Diversity, Grand Canyon Trust, Great Old Broads for Wilderness, National Parks Conservation Association, Natural Resources Defense Council, Sierra Club, The Wilderness Society, Western Watersheds Project, and WildEarth Guardians.”). 30 Memorandum Decision and Order on Proposed Intervenors’ Motions to Intervene 2, docket no. 122, filed March 17, 2023. 31 Memorandum Decision and Order Staying Decision on UDB Intervenors’ Objection, GSEP Intervenors’ Objection, Archaeological Intervenors’ Objection and Plaintiffs’ Objection 4-5, docket no. 176, filed July 7, 2023. 32 Amended Complaint for Declaratory and Injunctive Relief (“Amended Complaint 90”), docket no. 90, filed Jan. 26, 2023. 5 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7692 Page 6 of 28 (1) President Biden violated the Antiquities Act (“the Act”) with the Bears Ears National Monument Proclamation 34 and the Grand Staircase-Escalante National Monument Proclamation 35 (collectively “Proclamations”); and (2) all Federal Defendant agencies are adversely affecting Plaintiffs through (a) the Bears Ears National Monument and Grand Staircase-Escalante National Monument interim memoranda 36 (“the Memoranda”) which Plaintiffs allege are “final agency actions,” 37 and (b) the denial of permits, which Plaintiffs also allege are “final agency actions.” 38 Plaintiffs seek (1) a declaration that the Act does not authorize President Biden’s Proclamations and that they “are therefore unlawful, unenforceable, and void” 39; (2) “an injunction forbidding Defendants and their successors from implementing, administering, or enforcing” the Proclamations; 40 and (3) a declaration that the alleged final agency actions by Defendants are unlawful. 41 Federal Defendants, 42 Tribal Nations, 43 (collectively “Defendants”) and SUWA Intervenors 44 filed separate motions to dismiss. The National Wildlife Federation filed an amicus 33 Amended Complaint of Garfield County, Kane County, and The State of Utah (“Amended Complaint 91”), docket no. 91, filed Jan. 26, 2023. 34 Amended Complaint 90, ¶¶ 180, 183; Amended Complaint 91, ¶ 373. 35 Amended Complaint 90, ¶¶ 180, 183; Amended Complaint 91, ¶ 380. 36 Amended Complaint 90, ¶ 191; Amended Complaint 91, ¶¶388, 391, 396, 399. 37 Amended Complaint 90, ¶ 192; Amended Complaint 91, ¶¶ 386, 394. 38 Amended Complaint 90, ¶ 193. 39 Amended Complaint 90 at 66; see Amended Complaint 91 at 95. 40 Id. 41 Id. 42 Defendants’ Motion to Dismiss Amended Complaints, docket no. 113, filed March 2, 2023. 43 Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe Motion to Dismiss, docket no. 114, filed March 2, 2023. 6 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7693 Page 7 of 28 curiae brief in support of these motions. 45 The motions were fully briefed. 46 The Separation of Powers Clinic filed an amicus curiae brief in support of Plaintiffs’ arguments. 47 Consolidated Plaintiffs filed a motion for summary judgment soon after the motions to dismiss were filed. 48 Defendants motion to stay briefing on the motion for summary judgment pending disposition of this motion49 was granted. 50 For reasons stated below, Federal Defendants’ and Tribal Nations’ motions to dismiss are GRANTED and the case is DISMISSED with prejudice. The Antiquities Act Enacted in 1906, the Antiquities Act “was the first U.S. law to provide general legal protection of cultural and natural resources of historic or scientific interest on Federal lands.” 51 Ten years later, the National Parks System was created “to conserve the scenery, natural and historic objects, and wildlife in the System units and to provide for the enjoyment of the scenery, 44 SUWA Intervenors’ Motion to Dismiss Amended Complaints and Memorandum in Support, docket no. 141, filed March 30, 2023. 45 Brief of Proposed Amicus Curiae National Wildlife Federation, Utah Wildlife Federation, New Mexico Wildlife Federation, Arizona Wildlife Federation, and Colorado Wildlife Federation in Support of Intervenor-Defendants’ and Federal Defendants’ Motions to Dismiss, docket no 124, filed March 20, 2023. 46 Individual Plaintiffs’ Opposition to Motions to Dismiss, docket no 153, filed April 14, 2023; Garfield County Plaintiffs’ Opposition to Motions to Dismiss, docket no 154, filed April 14, 2023; SUWA Intervenors’ Reply in Support of Motion to Dismiss, docket no 164, filed May 5, 2023; Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Utah Tribe Reply in Support of Motion to Dismiss, docket no 165, filed May 5, 2023; Defendants’ Reply in Support of Motion to Dismiss Amended Complaints, docket no. 166, filed May 5, 2023. 47 Brief of Proposed Amicus Curiae Separation of Powers Clinic, docket no. 161, filed April 27, 2023. 48 Individual Plaintiffs’ Motion for Summary Judgment, docket no 117, filed March 9, 2023. 49 Defendants’ Motion to Stay Summary Judgment Briefing or, Alternatively, to Extend Deadline for Filing Response to Summary Judgment Motion, docket no. 129, filed March 24, 2023; Hopi Tribe, Navajo Nation, Pueblo of Zuni, and Ute Mountain Ute Tribe Motion to Stay Summary Judgment Briefing or to Extend Deadline for Fling Response to Motion for Summary Judgment, docket no. 138, filed March 27, 2023; SUWA Intervenors’ Motion to Stay Summary Judgment Briefing, and to Incorporate SUWA Intervenors’ Motion to Dismiss into Existing Briefing Schedule, docket no. 142, filed March 30, 2023. 50 Memorandum Decision and Order Granting Defendants’ Motion to Stay, Intervenor-Defendants Tribal Nations’ Motion to Stay and SUWA Intervenor-Defendants’ Motion to Stay, docket no. 149, filed April 4, 2023. 51 Statement for the Record, Designation of Monuments Pursuant to the Authorities Provided in the Antiquities Act. 7 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7694 Page 8 of 28 natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 52 The process for a President to establish or enlarge a national monument under the Antiquities Act is two-fold. “The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” 53 Then the President “may reserve[s] parcels of land as a part of the national monuments.” 54 These parcels “shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.” 55 Since 1920, there have been several challenges to a president’s authority to withdraw land as a national monument under the Antiquities Act. These include challenges to the Grand Canyon, 56 Jackson Hole, 57 Devil’s Hole, 58 Grand Sequoia, 59 Grand Canyon-Parashant, Canyons of the Ancients, Cascade-Siskiyou, Hanford Reach, Ironwood Forest, Sonoran Desert, 60 Grand Staircase-Escalante, 61 and Northeast Canyons and Seamounts Marine 62 national monuments. Each of these challenges has been unsuccessful. 52 54 U.S.C.A. § 100101. 53 54 U.S.C. § 320301(a). 54 Id. at § 320301(b). 55 Id. 56 Cameron v. United States, 252 U.S. 450 (1920). 57 State of Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945). 58 Cappaert v. United States, 426 U.S. 128 (1976). 59 Tulare Cnty. v. Bush, 306 F.3d 1138 (D.C. Cir. 2002). 60 Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1133-34(D.C. Cir. 2002). 61 Utah Ass’n of Ctys. v. Bush, 316 F. Supp. 2d 1172, 1176 (D. Utah 2004) appeal dismissed Utah Ass’n of Ctys. v. Bush, 455 F.3d 1094, 1096 (10th Cir. 2006). 62 Massachusetts Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019) (cert. denied Massachusetts Lobstermen’s Ass’n v. Raimondo, 209 L. Ed. 2d 486 (2021)). 8 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7695 Page 9 of 28 The Bears Ears and Grand Staircase-Escalante National Monuments The Grand Staircase-Escalante National Monument (“GSENM”) was established on September 18, 1996 by President Clinton with Proclamation 6920. 63 It then “consist[ed] of approximately 1.7 million acres.” 64 President Trump reduced the monument to 1,003,863 acres on December 4, 2017. 65 President Biden enlarged the monument to 1.87 million acres on October 8, 2021. 66 The Bears Ears National Monument (“BENM”) was established on December 28, 2016, by President Obama with Proclamation 9558. 67 It consisted of “approximately 1.35 million acres.” 68 President Trump reduced the monument to 201,876 acres. 69 President Biden enlarged the monument to 1.36 million acres on October 8, 2021. 70 63 Proclamation No. 6920, 3 C.F.R. 64 (Sep. 18, 1997). 64 Proclamation No. 6920 at 67. 65 Proclamation No. 9682, 82 Fed. Reg. 58089, 58093 (Dec. 4, 2017). 66 Proclamation No. 10286, 86 Fed. Reg. 57335, 57345 (Oct. 8, 2021). 67 Proclamation No. 9558, 82 Fed. Reg 1139 (Dec. 28, 2016). 68 Proclamation No. 9558 at 1143. 69 Proclamation No. 9681, 82 Fed. Reg. 58081, 58085 (Dec. 4, 2017). 70 Proclamation No. 10285, 86 Fed. Reg 57321, 57331 (Oct. 8, 2021). 9 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7696 Page 10 of 28 Grand Staircase-Escalante National Monument image: Exhibit H, docket no. 113-9, filed March 2, 2023. 10 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7697 Page 11 of 28 Bears Ears National Monument image: Exhibit G, docket no. 113-8, filed March 2, 2023. 11 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7698 Page 12 of 28 STANDARD OF REVIEW Defendants bring their Motion to Dismiss under Fed. R. Civ. P. 12.71 “[T]o withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’” 72 Dismissal is appropriate under Rule 12(b)(6) when the complaint, standing alone, is legally insufficient to state a claim on which relief may be granted. 73 Each cause of action must be supported by enough sufficient, well-pleaded facts to be plausible on its face. 74 In reviewing a complaint on a Rule 12(b)(6) motion to dismiss, factual allegations are accepted as true and reasonable inferences are drawn in a light most favorable to the plaintiff. 75 However, “assertions devoid of factual allegations” that are nothing more than “conclusory,” and “formulaic recitation” of the law are disregarded. 76 DISCUSSION “Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.” 77 This rule bars Plaintiffs’ claims. Plaintiffs allege President Biden exceeded his authority by enlarging the GSENM and BENM via the Proclamations. Before deciding if the Proclamations are unlawful, the court must decide if they can be reviewed by a court. They cannot. Judicial review requires a waiver of sovereign immunity, which is not present. 71 Defendants’ Motion to Dismiss Amended Complaints 1; Tribal Nations’ Motion to Dismiss 1. 72 Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 73 Fed. R. Civ. P. 12(b)(6); see Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). 74 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 75 GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). 76 Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009). 77 Martin v. Mott, 25 U.S. 19, 31–32 (1827). 12 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7699 Page 13 of 28 Plaintiffs also allege that the Memoranda written by the Bureau of Land Management (“the BLM”) constitute “final agency action” according to the Administrative Procedures Act. They do not. And Plaintiffs do not have standing to allege a denial of a permit because they were not harmed. Judicial review of these two Proclamations is not permitted without a waiver of sovereign immunity Plaintiffs allege that President Biden’s Proclamations are reviewable by a federal district court. 78 “The United States, as sovereign, is immune from suit save as it consents to be sued.” 79 “The government consents to be sued only when Congress unequivocally expresses its intention to waive the government's sovereign immunity in the statutory text.” 80 Without a statutory waiver by Congress, judicial review of a president’s actions is only permitted for constitutional challenges 81 and ultra vires challenges. 82 Without either of those bases, “[judicial] review is not available when the statute in question commits the decision to the discretion of the President.” 83 Plaintiffs’ claims are statutory challenges, not constitutional challenges Plaintiffs allege that President Biden violated the Act by enlarging the BENM and GSENM with the Proclamations. These are statutory—not constitutional—claims, similar to those in Dalton v. Specter. 84 In that case, the President had recently received the authority to close a Philadelphia naval shipyard “pursuant to the Defense Base Closure and Realignment Act 78 Individual Plaintiffs’ Opposition to Motions to Dismiss 9-15; Utah Plaintiffs’ Opposition to Motions to Dismiss 61. 79 United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769, 85 L. Ed. 1058 (1941). 80 United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922, 930 (10th Cir. 1996) (internal quotations omitted). 81 Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). 82 Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949). 83 Dalton, 511 U.S.462, 474 (1994). 84 Id. 13 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7700 Page 14 of 28 of 1990 (1990 Act or Act).” 85 “The decision to close the shipyard was the end result of an elaborate selection process prescribed by the 1990 Act.” 86 “[T]he Act provide[d] for three successive rounds of base closings—in 1991, 1993, and 1995.” 87 “For each round,” the Secretary of Defense (“Secretary”) “prepare[d] closure and realignment recommendations,” and “submit[ted] his recommendations to Congress and to the Defense Base Closure and Realignment Commission (Commission).” 88 The Commission conducted its own review and issued its recommendations and report. 89 After receiving the Commission’s report, the President was required to “decide whether to approve or disapprove” the recommendations. 90 If the President approved the recommendations, “the President must submit the recommendations…to Congress.” 91 If Congress did not pass a joint resolution of disapproval, “the Secretary must close all military installations recommended for closure by the Commission.” 92 Respondents— “shipyard employees and their unions; Members of Congress from Pennsylvania and New Jersey; the States of Pennsylvania, New Jersey, and Delaware, and officials of those States; and the city of Philadelphia” 93—“sought to enjoin the [Secretary] from carrying out” the President’s decision. 94 Respondents filed their action under the Administrative Procedure Act (“the APA”) and the 1990 Act, alleging the Commission’s recommendations were faulty. 95 The Supreme 85 Id. at 464 (parenthetical in original). 86 Id. at 464. 87 Id. at 464-65. 88 Id. at 465 (parenthetical in original). 89 Id. at 465. 90 Id. 91 Id. 92 Id. 93 Id. at 464 n.1. 94 Id. at 464. 95 Id. at 466. 14 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7701 Page 15 of 28 Court held that the claims were statutory because the President was “said to have violated the terms of the 1990 Act by accepting procedurally flawed recommendations.” 96 The claims in this case are also statutory. President Biden is accused of violating the Antiquities Act with his Proclamations that enlarge GSENM and BENM. The claims target the President’s actions under the statute. Therefore, they are statutory claims, and judicial review is unavailable. A “President’s actions may…be reviewed for constitutionality.”97 Plaintiffs did not make any constitutional challenges in their amended complaints. 98 §702 of the APA does not waive sovereign immunity Rather than making constitutional challenges, Plaintiffs argue that § 702 of the APA waives the Federal Government’s sovereign immunity. 99 § 702 of the APA states “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Individual Plaintiffs assert “[s]ection 702 has been read to operate as a ‘general waiver’ of federal sovereign immunity for all injunctive or declaratory relief.” 100 Individual Plaintiffs assert that the Proclamations “necessarily must be implemented by executive branch subordinates” and therefore “claims concerning such proclamations are inherently premised on stopping unlawful subordinate executive action.” 101 Their argument stems from Brnovich v. Biden, a District of Arizona case involving vaccination requirements relating to federal contractors and subcontractors (“the Contractor 96 Id. at 474. 97 Franklin, 505 U.S. at 801. 98 See Amended Complaint 90 ¶¶ 179-96; Amended Complaint 91 ¶¶ 370-99. 99 Individual Plaintiffs’ Opposition to Motions to Dismiss 12; Utah Plaintiffs’ Opposition to Motions to Dismiss 61. 100 Individual Plaintiffs’ Opposition to Motions to Dismiss 12 (citing to U.S. v. Murdock Mach. & Eng’g Co., 81 F.3d 922, 929 n.8 (10th Cir. 1996)). 101 Id. 15 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7702 Page 16 of 28 Mandate.”) 102 The district court explained that the mandate “involve[d] a substantial number of officials and entities within the executive apparatus that are unquestionably subject to this Court’s equitable jurisdiction.” 103 And that court concluded that “Plaintiffs’ claims implicat[ing] presidential action” “[did] not preclude judicial review” 104 of the actions of the subordinate officials and entities. Brnovich v. Biden does not apply to this case. Individual Plaintiffs’ amended complaint identifies only the President—and not any other Defendant—as the lone official connected to the Proclamations. The complaint’s claims include: “President Biden’s proclamations” 105; “President Biden’s reservation of land” 106; “the President lacks the power to declare a reservation that covers the affected area” 107; “the President’s discretion” 108; “the [Antiquities] Act gives the President the limited power” 109; “every President’s proclamations must comply with the [Antiquities] Act” 110; and “the President has exceeded his authority.” 111 As Individual Plaintiffs’ amended complaint points out, there are no intermediary officials involved in the issuance of the Proclamations. Their arguments attempt to sidestep the reality that the President is the one 102 Brnovich v. Biden, 562 F. Supp. 3d 123, 132-33 (D. Ariz. 2022) (reversed on other grounds Mayes v. Biden, 67 F.4th 921 (9th Cir. 2023). 103 Id. at 150. 104 Id. 105 Amended Complaint 90 ¶¶ 180-83; Amended Complaint 91 ¶¶ 373, 380. 106 Amended Complaint 91 ¶¶ 374, 381. 107 Id. at ¶¶ 376, 383. 108 Id. 109 Amended Complaint 90 ¶ 180. 110 Amended Complaint 91¶¶ 375, 382. 111 Id. at ¶¶ 371, 378. 16 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7703 Page 17 of 28 “vest[ed]…with authority to administer the [Antiquities] Act and manage the [Proclamations].” 112 Utah Plaintiffs do not fare any better. They allege “the APA waives sovereign immunity for all non-damages actions against the federal government.” 113 They reference a Tenth Circuit case, Simmat v. U.S. Bureau of Prisons. 114 But this case actually said, “Congress passed legislation in 1976 to waive sovereign immunity in most suits for nonmonetary relief.” 115 Utah Plaintiffs fail to acknowledge the Franklin v. Massachusetts ruling by the Supreme Court in 1992, which distinguished the APA term “agency” from “the President.” The Supreme Court held that “[t]he President is not an agency within the meaning of the [APA].” 116 “As the APA does not expressly allow review of the President’s actions,” “his actions are not subject to its requirements” nor “reviewable for abuse of discretion under the APA.” 117 Therefore, Utah Plaintiffs’ argument fails. President Biden’s actions are not within the ultra vires exception to sovereign immunity Plaintiffs allege that the Proclamations are ultra vires President Biden’s authority. 118 An exception to the sovereign immunity doctrine is “suits for specific relief” when an “officer is not doing the business which the sovereign has empowered him to do” and “[h]is actions are ultra vires his authority.” 119 This exception is narrow, available “only because of the officer’s lack of 112 Wyoming v. United States, 279 F.3d 1214, 1228 (10th Cir. 2002). 113 Utah Plaintiffs’ Opposition to Motions to Dismiss at 61. 114 413 F.3d 1225 (10th Cir. 2005). 115 Id. at 1233. 116 Franklin, 505 U.S. at 796. 117 Id. at 801. 118 Amended Complaint 91 ¶¶ 371, 378; Individual Plaintiffs’ Opposition to Motions to Dismiss 11-12; Utah Plaintiffs’ Opposition to Motions to Dismiss 60-62. 119 Larson, 337 U.S. at 689. 17 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7704 Page 18 of 28 delegated power.” 120 Merely an “error in the exercise of that power is therefore not sufficient” 121 to satisfy the exception. Invoking ultra vires is an “attempt to avoid the shield of sovereign immunity.” 122 Plaintiffs’ amended complaint does not assert that President Biden lacks the authority to withdraw federal land as national monuments. Individual Plaintiffs declare in their opposition that “the President went beyond the bounds of his authority to wield a power he does not possess and declare as ‘objects’ things the Antiquities Act categorically does not reach.” 123 And their opposition argues that “this suit rests on the President’s lack of authority to fashion these monuments.” 124 However, Individual Plaintiffs do not cite to any claims from their amended complaint to support these allegations. Even if Individual Plaintiffs were granted leave to amend their complaint, they would not be able to plead the ultra vires exception. “No court of appeals has addressed…how to interpret the [Act’s] ‘smallest area compatible’ requirement.” At most, Individual Plaintiffs would be able to make the same arguments Utah Plaintiffs make, infra. But without additional guidance from Congress or a higher court, the President’s actions are not ultra vires. Utah Plaintiffs declare in their opposition that they “allege over and over (in their amended complaint) that the President had no power to make the reservations because they ‘exceed [the] limitations] of the Antiquities Act.” 125 They cite to paragraphs 288-318 of their amended complaint for support. But those factual statements are allegations that President Biden 120 Id. at 690. 121 Id. 122 State of N.M. v. Regan, 745 F.2d 1318, 1320 n.1 (10th Cir. 1984). 123 Individual Plaintiffs’ Opposition to Motions to Dismiss 11-12 (emphasis in briefing). 124 Id. at 12 (emphasis in briefing). 125 Utah Plaintiffs’ Opposition to Motions to Dismiss 61. 18 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7705 Page 19 of 28 misused his authority, not that he lacked it. They claim he exceeded the limitations of the Act 126 by declaring things as monuments “that are not qualifying landmarks, structures, or objects under the Act.” 127 They allege his designations are too generic. 128 For example, “items are listed as categories, such as ‘broad desert mesas,’ rather than as specific objects, such as ‘Dance Hall Rock.’” 129 They allege that only nine items 130 “qualif[y] for monument designation under the Act.” 131 And while their first two claims for relief are “lack of statutory authority under Antiquities Act,” their amended complaint does not contain allegations that President Biden lacked the authority to designate federal land as the BENM and the GSENM. Plaintiffs cannot rely on the ultra vires exception. The Memoranda are not “final agency action” reviewable under the APA On December 16, 2021, the director of the BLM issued Memoranda to the Utah State Director for the BLM. 132 One addressed the BENM Proclamation No. 10,285 133 and the other, the GSENM Proclamation No. 10,286. 134 The subject of each was “Interim Management of the [National Monument].” 135 The Memoranda claim to “(a) provide[] interim guidance for managing the monument while the agency develops a monument management plan; and (b) 126 Amended Complaint 91 at 68. 127 Id. at 61; ¶¶ 293-98, 302-05, 311-313. 128 Id. at ¶¶ 299-301, 306-310. 129 Id. at ¶ 299. Id. at ¶¶ 322-23 (“Bears Ears Buttes, Butler Wash Village, Doll House, Moon House, Newspaper Rock, and San Juan Hill”; “Dance Hall Rock, Twentymile Wash Dinosaur Megatrackway, and Grosvenor Arch”). 130 131 Amended Complaint 91 ¶ 314. 132 Memorandum from the BLM Director to the BLM Utah State Director re: Interim Mgmt. of the Bears Ears Nat’l Monument (Dec. 16, 2021) (“BENM Memorandum”); Memorandum from the BLM Director to the BLM Utah State Director re: Interim Mgmt. of the Grand Staircase-Escalante Nat’l Monument (Dec. 16, 2021) (“GSNM Memorandum”). 133 BENM Memorandum. 134 GSNM Memorandum. 135 BENM Memorandum 1; GSNM Memorandum 1. 19 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7706 Page 20 of 28 direct[] [the BLM Utah State Director] to begin preparing a monument management plan, with a goal of finalizing that plan no later than March 1, 2024.” 136 Plaintiffs allege that the Memoranda should be reviewed because they are considered “final agency action” under § 706(2) of the APA. 137 As stated supra, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 138 “[T]he person claiming a right to sue must identify some ‘agency action’ that affects him in the specified fashion.” 139 “Agency action” “ha[s] the meaning[] given [it] by [5 U.S.C. §551].” 140 “‘[A]gency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 141 “[A]ction…is meant to cover comprehensively every manner in which an agency may exercise its power.” 142 Agency action must be by statute or final agency action. 143 “[F]inal agency action for which there is no other adequate remedy in a court are subject to judicial review.” 144 “Final agency action” is not defined in the US Code. 136 Id. 137 Amended Complaint 90 ¶¶ 190-96; Amended Complaint 91 ¶¶ 385-99. 138 5 U.S.C. § 702. 139 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990). 140 5 U.S.C. §701(b)(2). 141 Id. at § 551(13). 142 Whitman v. Am. Trucking Associations, 531 U.S. 457, 478 (2001). 143 5 U.S.C. § 704. 144 Id. 20 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7707 Page 21 of 28 The Memoranda do not meet the three requirements for “final agency action” To determine if agency action is final depends on (1) whether its impact on a plaintiff is “direct and immediate” 145; (2) whether the action “mark[s] the consummation of the agency’s decisionmaking (sic) process” 146; and (3) whether the action is “one by which rights or obligations have been determined, or from which legal consequences will flow.” 147 The Memoranda—almost identical to one another in text—(1) do not have a direct and immediate impact on Plaintiffs; (2) are not the end of the BLM’s decision making process; and (3) do not establish rights, obligations, nor legal consequences. (1) The Memoranda do not have a direct and immediate impact on Plaintiffs In order to have a direct and immediate impact on a plaintiff, an agency action must “purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all [plaintiffs].” 148 An example is given in Abbott Laboratories v. Gardner. The Commissioner of Food and Drugs published a regulation 149 that, “effective immediately upon publication,” 150 required “labels, advertisements, and other printed matter relating to prescription drugs to designate the established name of the particular drug involved 145 Abbott Lab'ys v. Gardner, 387 U.S. 136, 152 (1967) (abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). 146 Bennett v. Spear, 520 U.S. 154, 178 (1997) (internal quotations omitted). 147 Id. 148 Abbott Lab'ys, 387 U.S. at 152. 149 Id. at 138 (“‘If the label or labeling of a prescription drug bears a proprietary name or designation for the drug or any ingredient thereof, the established name, if such there be, corresponding to such proprietary name or designation, shall accompany each appearance of such proprietary name or designation.’ 21 CFR s 1.104(g)(1).”). 150 Id. at 152. 21 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7708 Page 22 of 28 every time its trade name [was] used anywhere in such material.” 151 This necessitated “destroy[ing] stocks of printed matter” and “invest[ing] heavily in new printing type and new supplies.” 152 If plaintiffs—“a group of 37 individual drug manufacturers and…the Pharmaceutical Manufacturers Association” 153—chose not to comply, they “would risk serious criminal and civil penalties for the unlawful distribution of ‘misbranded’ drugs.” 154 That consequence was direct and immediate impact. The Memoranda do not have a direct and immediate impact on Plaintiffs. Plaintiffs assert that the Memoranda “restrain [their] use of the land, cut off potential revenue, and impede other projects.” 155 And that “[they] have been subjected to new rules, regulations, restrictions, and standards imposed and caused by both interim management plans.” 156 However, the contents of the Memoranda do not support these allegations. The Memoranda are directed to the BLM’s Utah State Director 157 (“BLM-UT”), and the BLM-UT is the only person given directives in the Memoranda. 158 The Memoranda only mention State and local governments and citizens for consultation purposes. The Memoranda “direct[] the Secretary of the Interior and the Secretary of Agriculture” to “coordinat[e] with State and local governments” “in the development of the monument management plan.” 159 They advise that “[t]he planning process should…provide for maximum public involvement, including 151 Id. at 139. 152 Id. at 152. 153 Id. at 138. 154 Id. at 153. 155 Amended Complaint 91 ¶¶ 388, 396. 156 Amended Complaint 90 ¶ 192. 157 BENM Memorandum 1; GSENM Memorandum 1. 158 BENM Memorandum 2-8; GSENM Memorandum 2-7. 159 BENM Memorandum 6; GSENM Memorandum 6. 22 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7709 Page 23 of 28 consultation with State and local governments, community members, and other interested stakeholders.” 160 And the Proclamations require the monument advisory committees “to include representatives from ‘State and local governments, Tribal Nations, recreational users, conservation organizations, educators, local business owners, private landowners, and the scientific community.” 161 No action of any Plaintiff is compelled by the Memoranda. There are no immediate deadlines for Plaintiffs in the Memoranda; only the deadlines for a BLM planning process: “within one year” 162; 6 months 163; within 45 days 164; and “expeditiously (by January 31, 2022).” 165 Nothing in the Memoranda’s language directly or immediately impacts Plaintiffs. (2) The Memoranda are not a consummation of the BLM’s decision making process Plaintiffs’ claim that the Memoranda are the “consummation of BLM’s decisionmaking (sic) process.” 166 Plaintiffs do not cite to any text in the Memoranda for support. 167 A “decision [that is] effectively the last word of the agency” constitutes “final agency action.” 168 “[I]t must not be of a merely tentative or interlocutory nature.” 169 In U.S. Army Corps of Engineers v. Hawkes Co., Inc., the Supreme Court held that a pre-permit, “approved jurisdictional decision” 160 BENM Memorandum 8; GSENM Memorandum 7. 161 GSENM Memorandum 6; see BENM Memorandum 7. 162 BENM Memorandum 7; GSENM Memorandum 6. 163 BENM Memorandum 7; GSENM Memorandum 6. 164 BENM Memorandum 8; GSENM Memorandum 7. 165 BENM Memorandum 4; GSENM Memorandum 4. 166 Individual Plaintiffs’ Opposition to Motions to Dismiss 64; Utah Plaintiffs’ Opposition to Motions to Dismiss 6364. 167 Individual Plaintiffs’ Opposition to Motions to Dismiss 64; Utah Plaintiffs’ Opposition to Motions to Dismiss 64. 168 Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1192 (10th Cir. 2014). 169 Bennett, 520 U.S. at 178 (internal citation omitted). 23 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7710 Page 24 of 28 constituted “final agency action” because it was “issued after extensive factfinding by the Corps” and was “typically not revisited if the permitting process move[d] forward.” 170 Conversely, these Memoranda are only preliminary, internally directive, informative, and suggestive. The phrase “interim guidance” is mentioned at the very beginning and throughout. 171 The Memoranda “provide[] specific direction to ensure that, until the new [joint management] plan is prepared, the BLM will manage the [National Monuments] in a manner consistent with [the Proclamations]. 172 The Memoranda do not give new information. They simply inform BLMUT how they should comply with the Proclamations until the 2024 management plan is created. The Memoranda reference the actions directed in the Proclamations and the monument management plans (forthcoming before March 1, 2024 173) as the source of any direction. 174 The Memoranda themselves do not give any requirements. They are simply a connector between the Proclamations and future monument management plans. The Memoranda also reference other documents as controlling (the BLM Manual, 175 CFRs, 176 and the Omnibus Act 177). But, again, the Memoranda do not give any order or compel any action. The Memoranda contain language that suggests more guidance could come: More specific guidance regarding particular types of uses and activities follows. Note, however, that this guidance is not intended to be comprehensive; additional, 170 578 U.S. 590, 597–98 (2016). 171 GSENM Memorandum 1, 2, 6; BENM Memorandum 1, 2, 6. 172 BENM Memorandum 2; GSENM Memorandum 1-2. 173 BENM Memorandum 1; GSENM Memorandum 1. 174 BENM Memorandum 1-7; GSENM Memorandum 1-7. 175 BENM Memorandum 2, 5, 7; GSENM Memorandum 2, 5, 6. 176 BENM Memorandum 2-3; GSENM Memorandum 2. 177 BENM Memorandum 2; GSENM Memorandum 3. 24 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7711 Page 25 of 28 detailed direction may be provided as particular issues are identified, including through the decision making and public involvement processes. 178 Nothing in the Memoranda suggest that they are anything more than informative dicta and internal agency direction. (3) The Memoranda do not “generate legal consequences” Plaintiffs allege that the Memoranda “generate legal consequences” 179 and “determine rights or obligations.” 180 Final agency action must have “direct and appreciable legal consequences.” 181 Agency action that binds multiple agencies and prohibits them from bringing a lawsuit against a property owner for five years has legal consequences. 182 Or a document may be agency action if it “warns…of incurring criminal penalties;” “issue[s] a cease and desist order” that is “enforceable by the courts;” or “revo[kes] [a] certificate or permit.” 183 Agency action that “carries no direct consequences” and “serves more like a tentative recommendation than a final and binding determination” is not final. 184 The Memoranda are “purely advisory.” 185 Plaintiffs allege legal consequences based on the statement in the Memoranda: “no new mining claims may be located, and no new mineral leases may be issued.” 186 This is incorrect. The Memoranda only quote the Proclamations, and then summarize them: “Therefore, no new mining claims may be located, and no new mineral leases may be issued, on lands within the 178 BENM Memorandum 5; GSENM Memorandum 5. 179 Individual Plaintiffs’ Opposition to Motions to Dismiss 65. 180 Utah Plaintiffs’ Opposition to Motions to Dismiss 65. 181 Bennett, 520 U.S. at 178. 182 U.S. Army Corps of Engineers, 578 U.S. 590, 598-99 (2016). 183 Frozen Food Exp. v. United States, 351 U.S. 40, 44 (1956). 184 Franklin, 505 U.S. at 798. 185 Bennett, 520 U.S. at 178. 186 Amended Complaint 91 ¶¶ 387, 395; Individual Plaintiffs’ Opposition to Motions to Dismiss 65. 25 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7712 Page 26 of 28 monument.” 187 The Memoranda do not add new restrictions, as Plaintiffs allege. The Memoranda do not warn of civil penalties or trigger criminal punishments, nor do they impose fines. They frequently cite to or quote the Proclamations. They do not create anything new that was not already created by the Proclamations. The Memoranda do not impose legal consequences, nor do they declare rights or obligations. The Biden Proclamations are the source of BLM’s obligations, and the Memoranda merely summarize the effects. They are not “final agency action” and therefore are not reviewable under the APA. Individual Plaintiffs do not have standing to bring the claim for denial of permits Individual Plaintiffs allege “[they] have been harmed when they have had federal permits denied as a result of President Biden’s proclamations and their implementing regulations.” 188 Individual Plaintiffs claim that “[a] permit denial is “final agency action.” 189 “Plaintiffs have the burden of identifying specific federal conduct and explaining how it is ‘final agency action’ within the meaning of section 551(13).” 190 The first requirement of 5 U.S.C. § 702 is “the person claiming a right to sue must identify some ‘agency action’ that affects him in the specified fashion.” 191 “The burden is on the party seeking review under § 702 to set forth specific facts…showing that he has satisfied its terms.” 192 187 BENM Memorandum 2; GSENM Memorandum 2. 188 Amended Complaint 90 at 193. 189 Id. 190 Colorado Farm Bureau Fed’n v. U.S. Forest Service, 220 F.3d 1171, 1173 (10th Cir. 2000). 191 Lujan, 497 U.S. at 882. 192 Id. at 884. 26 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7713 Page 27 of 28 Individual Plaintiffs do not specify in their “claims for relief” what specific permit was denied; which agency denied it; or specifically when it was denied. 193 Individual Plaintiffs did state in the body of the Amended Complaint that BLM Defendant “denied the [Utah/Arizona ATV] Club’s request” “for a special recreation permit to host part of its Jamboree on Inchworm Arch Road.” 194 Individual Plaintiffs allege that the Utah/Arizona ATV Club (“the Club”) was granted a permit for this event in 2020 and 2021 by BLM. 195 And in 2022, “[t]he only intervening change was that President Biden had issued his proclamations, and BLM had issued its interim management plan 196 implementing them.” 197 Even if the specific statement in the body of the amended complaint is sufficient, the Club does not have standing to bring this claim. The Club is “an outdoor off-highway vehicle recreation club” that “boasts a number of members from Utah” and is a member of BlueRibbon Coalition. 198 The Club is not a party to this lawsuit. The Club is only a member of the BlueRibbon Coalition. BlueRibbon “is a 501(c)(3) non-profit that has worked to protect access to public lands…since 1987.” 199 It “is a membership-based organization, with thousands of members across every State in the country.” 200 “In Utah, BlueRibbon has…almost 30 members who are business or organizations.” 201 193 Amended Complaint 90 at 193. 194 Id. at ¶ 108. 195 Id. at ¶¶ 106-07. 196 Apparently a reference to the Memoranda. 197 Id. at ¶ 108. 198 Id. at ¶ 104. 199 Id. at ¶ 80. 200 Id. 201 Id. at ¶ 81. 27 Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7714 Page 28 of 28 [An] “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 the respondent’s members. 202 The Club is not joined as a party to this action, so Individual Plaintiffs cannot seek for relief for a permit denied to the Club. CONCLUSION In spite of the sincere and deeply held view of the Plaintiffs, there is no relief for them in this action. It has long been held that where Congress has authorized a public officer to take some specified legislative action when in his judgment that action is necessary or appropriate to carry out the policy of Congress, the judgment of the officer as to the existence of the facts calling for that action is not subject to review. 203 President Biden’s judgment in drafting and issuing the Proclamations as he sees fit is not an action reviewable by a district court. ORDER Federal Defendants’ and Tribal Nations’ motions to dismiss are hereby GRANTED with prejudice. The clerk is directed to close the case. Signed August 11, 2023. BY THE COURT ________________________________________ David Nuffer United States District Judge 202 Lujan, 497 U.S. at 893. 203 United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940). 28

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