de 43 - government mtn to dismiss, 6.24.14

8/11/2019 De 43 - Government Mtn to Dismiss, 6.24.14

1/23

SAM HIRSCH,

Acting Assistant Attorney General

SETH M. BARSKY, ChiefS. JAY GOVINDAN, Assistant Chief

TRAVIS ANNATOYN, Trial Attorney

U.S. Department of JusticeEnvironment and Natural Resources Division

Wildlife and Marine Resources Section

Ben Franklin Station, P.O. Box 7611

Washington, D.C. 20044-7611(202) 514-5243 (tel)

(202) 305-0275 (fax)

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

NEVADA ASSOCIATION OF

COUNTIES, et al.

Plaintiffs,

v.

UNITED STATES DEPARTMENT OFTHE INTERIOR, et al.

Defendants.

)

))

)

))

)

))

)

)

CASE NO. 3:13-cv-712-MMD-WGC

MOTION TO DISMISS AND

MEMORANDUM IN SUPPORT

Case 3:13-cv-00712-MMD-WGC Document 43 Filed 06/24/14 Page 1 of 23


2/23

i

TABLE OF CONTENTS

PAGE

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

I. STATUTORYBACKGROUND ........................................................................................ 2

a. The Wild Free-Roaming Horses and Burros Act ........................................................ 2

b. The Administrative Procedure Act ............................................................................. 4

II. RECENTMANAGEMENTOFWILDHORSESINNEVADA ....................................... 5

STANDARD OF REVIEW ............................................................................................................ 6

ARGUMENT .................................................................................................................................. 7

A. Plaintiffs Amended Complaint is a Non-Justiciable Programmatic

Challenge ........................................................................................................................ 7

B. The Duties Described by Plaintiffs Do Not Supply a Basis for

Relief ............................................................................................................................. 12

i. Plaintiffs References to a State-Wide Inventory of Wild Horses

Do Not Challenge Final Agency Action ................................................................... 12

ii. Supreme Court Precedent Precludes Plaintiffs Challenges to BLMsMaintenance of an Ecological Balance in Nevada ................................................ 14

iii. Plaintiffs Have Not Challenged Final Agency Action Related to BLMs

Use of Long-Term Holding Facilities ....................................................................... 14

C. Plaintiffs Second and Third Claims Are Duplicative .................................................. 16

D. Plaintiffs Procedural Due Process Arguments Do Not State a Valid

Claim for Relief ............................................................................................................ 16

CONCLUSION ............................................................................................................................. 17



3/23

ii

TABLE OF AUTHORITIES

CASES PAGE

A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631 (9th Cir. 2012) ...................................... 7

Am. Horse Prot. Ass'n v. Watt, 694 F.2d 1310 (D.C. Cir. 1982) ................................................... 2

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 6

Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007) .......................................................................... 6

Bennett v. Speak, 520 U.S. 154 (1997)......................................................................................... 13

Blake v. Babbitt, 837 F. Supp. 458 (D.D.C. 1993) ..................................................................... 2, 3

Bradshaw v. United States, 47 Fed. Cl. 549 (Fed. Cl. 2000) ........................................................ 17

Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) .......................................................................... 16

Colvin Cattle Co. v. United States, 468 F.3d 803 (Fed. Cir. 2006) .............................................. 17

Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ...................................................... 7

Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) ................................... 11

Def. of Animals v. U.S. Dep't of Interior, 2014 WL 1876986 ................................................. 5, 15

Def. of Animals v. U.S. Dep't of Interior,909 F. Supp. 2d 1178 (E.D. Cal. 2012) ..................................................................................... 15

Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995) ................................................................ 17

Fund for Animals v. BLM, 460 F.3d 13 (D.C. Cir. 2006) .......................................................... 3, 9

Habitat for Horses v. Salazar,

2011 WL 4343306 (S.D.N.Y. Sept. 7, 2011) ......................................................................... 9, 10

Leigh v. Salazar, 2013 WL 1249824 (D. Nev. March 26, 2013).................................................. 16

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) ................................................................ 4, 7, 8

Medtronic, Inc. v. Mirowski Family Ventures, LLC,

134 S. Ct. 843 (2014) ................................................................................................................. 16

Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) ............................................................... 7



4/23

iii

Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) ................................... 17

Natural Res. Def. Council v. Hodel,624 F. Supp. 1045 (D. Nev. 1985) ............................................................................................. 12

Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ............................................................................. 6

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ................................................. passim

Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ............................... 13

Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc) ................................................... 9

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) ................................................... 16

Summers v. Earth Island Inst., 555 U.S. 488 (2009) .................................................................... 15

United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984 (9th Cir. 2011) ................................ 6

Wild Fish Conservancy v. Jewell, 730 F.3d 791 (9th Cir. 2013) ................................................. 10

Wild Horse Observers Ass'n v. Jewell, 550 F. App'x 683 (10th Cir. 2013) ................................. 12

STATUTES

5 U.S.C. 551(4) ............................................................................................................................ 5

5 U.S.C. 551(13) .................................................................................................................... 4, 13

5 U.S.C. 702 ................................................................................................................................. 4

5 U.S.C. 704 ........................................................................................................................... 1, 13

5 U.S.C. 706(1) ............................................................................................................................ 8

16 U.S.C. 1331 ............................................................................................................................. 2

16 U.S.C. 1332(f) ......................................................................................................................... 3

16 U.S.C. 1333(a) ........................................................................................................................ 3

16 U.S.C. 1333(b) ...................................................................................................................... 13

16 U.S.C. 1333(b)(1) ............................................................................................................. 3, 12

16 U.S.C. 1333(b)(2) ......................................................................................................... 3, 4, 14

16 U.S.C. 1333(b)(2) ................................................................................................................... 3



5/23

iv

28 U.S.C. 2201-02 ..................................................................................................................... 16

28 U.S.C. 2401(a) ...................................................................................................................... 12

43 U.S.C. 1732(a) ........................................................................................................................ 2

43 U.S.C. 1782(c) ........................................................................................................................ 8

FEDERAL REGULATIONS

Fed. R. Civ. P. 8(a) ..................................................................................................................... 6, 7

Fed. R. Civ. P. 12(b)(6)............................................................................................................... 6, 7

43 C.F.R. 4700.0-5(d) .................................................................................................................. 4

43 C.F.R. 4710.3-1 ....................................................................................................................... 3

43 C.F.R. 4710.4 .......................................................................................................................... 4



6/23

1

INTRODUCTION

By passing and later amending the Wild Free-Roaming Horses and Burros Act, Congress

commanded the Department of the Interior, acting through the Bureau of Land Management

(BLM), to both protect populations of wild horses and to manage the species overpopulation.

In particular, BLM is obligated to remove excess wild horses from public lands, and then to

adopt, sell, or humanely destroy those horses. But even as populations of wild horses have risen

nationwide, Congress has curtailed many of the tools that might prevent and mitigate any

deleterious effects of the species on local resources. Specifically, Congress has decreased

funding available to BLM for horse management thereby limiting BLMs capacity to remove

excess horses even as it has forbidden BLM from humanely destroying excess horses stored in

BLMs long-term holding faculties. Because BLM is obligated to care for these horses, funds

available for range-management are even more limited than is readily apparent, and populations

of wild horses have grown accordingly. Both federal and independent observers have noted that

this population growth may strain resources located or dependant on public lands, including

those in Nevada.

Plaintiffs amended complaint alleges precisely such an effect and requests that the Court

remedy matters by assuming wholesale control over BLMs management of wild horses in

Nevada.1

1Because Defendant-Intervenors filed a motion to dismiss Plaintiffs original complaint on May

29, 2014, Plaintiff amended its pleadings as matter of course under Fed. R. Civ. P. 15(1)(B) on

June 17, 2014, styling its submission as a motion to amend rather than as an amendedcomplaint. See ECF No. 42 at 2. The arguments presented below apply equally to both

complaints.

But while it is a matter of public debate whether and to what extent wild horse

populations affect public lands throughout the Nevada, it is beyond question that Plaintiffs

lawsuit is not amenable to resolution by a federal court. Plaintiffs bring their suit under the



7/23

2

Administrative Procedure Act (APA), which waives the sovereign immunity of the United

States only for challenges to discrete, final agency action. 5 U.S.C. 704. Rather than

challenge any such action, Plaintiffs have simply directed their amended complaint against the

sumof BLMs managerial actions throughout the state of Nevada. Thus, Plaintiffs request that

the Court assume the role of rangemaster for the entire state, overseeing literally hundreds of

horse-inventories and a massive program to gather and somehow dispose of thousands of horses.

As the breadth of this request suggests, Plaintiffs disagreement with BLM does not merely fall

outside the APAs cause-of-action, but has been expressly labeled as nonjusticiable by the

United States Supreme Court. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004)

(SUWA). Accordingly, the Court must dismiss Plaintiffs amended complaint under Fed. R.

Civ. P. 12(b)(6): even assuming the truth of Plaintiffs allegations concerning the impact of wild

horses (an issue not before the Court in this motion) Plaintiffs proper recourse is not with an

Article III court, but through petitions to Congress and the Executive.

BACKGROUND

I.

STATUTORY BACKGROUND

a. The Wild Free-Roaming Horses and Burros Act

BLM manage[s] the public lands under principles of multiple use and sustained yield.

43 U.S.C. 1732(a). Since the Wild Free-Roaming Horses and Burros Act (Wild Horse Act)

was passed in 1971, this responsibility has included oversight and management of wild horses

and burros on public lands. See 16 U.S.C. 1331 et seq. Responding to declining numbers of

wild horses, Congress passed the Wild Horse Act in 1971 to provide for the animals protection

and management. 16 U.S.C. 1331. Within only a few years, however, the situation had

reversed itself, and action [was] needed to prevent a successful program from exceeding its



8/23

3

goals and causing animal habitat destruction. Am. Horse Prot. Assn v. Watt, 694 F.2d 1310,

1316 (D.C. Cir. 1982) (quoting H.R. Rep. No. 95-1122 at 1-2 (1978)); see also Blake v. Babbitt,

837 F. Supp. 458, 459 (D.D.C. 1993) ([e]xcess numbers of horses and burros pose a threat to

wildlife, livestock, the improvement of range conditions, and ultimately [the horses

themselves]) (citation omitted)). Accordingly, in 1978, Congress passed amendments to the

Wild Horse Act, providing the Secretary with greater authority and discretion to manage and

remove wild horses from the rangeland. Id.

The Wild Horse Act grants the Secretaries of the Interior and Agriculture jurisdiction

over all wild free-roaming horses and burros on public lands, and directs the Secretaries to

manage wild free-roaming horses and burros 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 also

Fund for Animals v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). In particular, the Secretaries are

prohibited from allowing the range to deteriorate from an overpopulation of wild horses. See 16

U.S.C. 1333(b)(2).BLM, as the Secretary of the Interiors delegate, carries out this function in

localized Herd Management Areas (HMAs). 16 U.S.C. 1333(b)(2), (c); 43 C.F.R.

4710.3-1. Fund for Animals, 460 F.3d at 15.

In each herd management area, BLM officials possess significant discretion to determine

appropriate management levels (AMLs) for the local wild horse and burro populations. 16

U.S.C. 1333(b)(1). BLM typically uses an AML range bounded by a low AML and a

high AML for each HMA. When wild horses on an HMA exceed the high AML and must

be removed to protect the range, BLM conducts a gather to remove the excess horses. Even

where wild horse populations do not exceed high AML, BLM is obliged to remove horses when

populations exceed the carrying capacity of the range, or when wild horses stray outside of a



9/23

4

designated herd management area. See 16 U.S.C. 1332(f) (defining excess animals as wild

free-roaming horses or burros (1) which have been removed from an area by the Secretary

pursuant to applicable law or, (2) which must be removed from an area in order to preserve and

maintain a thriving natural ecological balance and multiple-use relationship in that area); 43

C.F.R. 4710.4 (management of wild horses shall be undertaken with the objective of limiting

the animals distribution to herd areas); 43 C.F.R. 4700.0-5(d) (herd areas are the geographic

area identified as having been used by a herd as its habitat in 1971).

Once BLM has determined that an overpopulation exists on a given area of the public

lands and that action is necessary to remove excess animals, [BLM] shall immediately remove

excess animals from the range so as to achieve appropriate management levels. 16 U.S.C.

1333(b)(2). Following capture, BLM must provide excess horses for adoption or sale, and must

cause additional horses to be destroyed in the most humane and cost efficient manner

possible. Id. at 1333(b)(2)(B)-(C).

b. The Administrative Procedure Act

Plaintiffs bring their challenge under the APA, which provides that [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. 5 U.S.C. 702.

Thus, plaintiffs must identify some agency action that affects [them] in the specified fashion;

it is judicial review thereof to which [they are] entitled. Lujan v. Natl Wildlife Fedn, 497

U.S. 871, 882 (1990) (NWF). Not every agency activity is an agency action under the APA.

Rather, 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). A

failure to act is merely a failure to take one of the agency actions (including their equivalents)



10/23

5

earlier defined in 551(13). SUWA, 542 U.S. at 62. All of those categories involve

circumscribed, discreteagency actions, as their definitions make clear. Id. at 63 (emphasis

added); see 5 U.S.C. 551(4) (defining rule), (6) (order), (8) (license), 10 (sanction),

(11) (relief).

II. RECENT MANAGEMENT OF WILD HORSES IN NEVADA

Over the past two decades, BLM has encountered several challenges in its efforts to

implement the Wild Horse Act. Other than a brief interval between 2004 and 2008, for instance,

Congress has prohibited the use of appropriated funds for the destruction of healthy, excess

horses. In Def. of Animals v. U.S. Dept of Interior, -- F.3d --, NO. 12-17804, 2014 WL

1876986, at *1 and n.3 (9th Cir. May 12, 2014). Accordingly, BLM has been largely unable to

dispose of excess horses other than through qualifying adoptions and sales, even as demand for

the horses has declined. Id. at *8 and n.20. Assessing congressional limitations on the

disposition of excess horses, the Government Accountability Office determined in 2008 that

BLMs capacity to manage wild horse populations would be increasingly limited by the cost of

holding captured animals for adoption, since supply for horses far outstripped demand.2

In addition to the increasing fiscal strain on BLM caused by long-term holding of excess

horses, the Department of the Interiors Inspector General reported in 2010 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

2See 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 June 19, 2014).



11/23

6

multiple-use strategies.3 Most recently, the National Academy of Sciences conducted a

comprehensive review of the Wild Horse Program, concluding that BLM has likely

underestimated the total number of horses on public lands, and recommending that BLM gather

fewer horses as one means of slowing population growth.4

STANDARD OF REVIEW

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a

claim. 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 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Iqbalexplained that the pleading requirement of Fed. R.

Civ. P. 8(a) demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation. 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The plausibility standard is

not akin to a probability requirement, but it asks for more than a sheer possibility that a

defendant has acted unlawfully. 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing

Twombly, 550 U.S. at 556). Thus, a pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action is insufficient to state a claim under

Rule 8 of the Federal Rules of Civil Procedure. Id.(quoting Twombly, 550 U.S. at 555).

3See Office of the Inspector General, Rpt. No. C-IS-BLM-0018-2010, BLM Wild Horse and

Burro Program (Dec. 2010), available at http://www.doi.gov/oig/reports/upload/C-IS-BLM-

0018-2010.pdf. (last visited June 19, 2014).4See Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward

(2013), available at http://dels.nas.edu/Report/Using-Science-Improve/13511 (last visited June

19, 2014).



12/23

7

The Ninth Circuit has directed rigorous compliance with these standards. A district court

must determine whether the complaint itself contains sufficient factual matter that, taken as

true, state[s] a claim for relief . . . plausible on its face. United States ex rel. Lee v. Corinthian

Colls.,655 F.3d 984, 991 (9th Cir. 2011) (internal quotation marks and citation omitted). See

alsoMoss 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 under Fed. R. Civ. P. 12(b)(6) for failing to meet

the requirements of Fed. R. Civ. P. 8(a). Conservation Force v. Salazar, 646 F.3d 1240, 1242

(9th Cir. 2011) (internal quotation marks and citation omitted). SeeA.E. ex rel. Hernandez v.

Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

ARGUMENT

I. PLAINTIFFS AMENDED COMPLAINT MUST BE DISMISSED IN ITS

ENTIRETY

A. Plaintiffs Amended Complaint is a Non-Justiciable Programmatic Challenge

The Court must dismiss Plaintiffs first claim for relief because the claim fails to

challenge any agency action much less a final agency action within the meaning of the

APA. Instead, the claim challenges an alleged pattern and practice of conduct, which is not

subject to judicial review. SUWA, 542 U.S. at 64; NWF, 497 U.S. at 882.

In NWF, the Supreme Court held that the APAs requirement of a discrete final agency

action precludes general judicial review of [an agencys] day-to-day operations. 497 U.S. at

899. The plaintiff in NWF alleged that BLM had violated the National Environmental Policy

Act (NEPA) and the Federal Land Policy and Management Act (FLPMA) by reclassifying

public lands that were previously withdrawn from mineral leasing and mining activities. The

plaintiff dubbed this practice consisting of 1,250 individual land classifications and withdrawal



13/23

8

revocations, including some that had not yet occurred the land withdrawal review program.

In an effort to demonstrate standing, plaintiffs members submitted six affidavits alleging harm

from particular land status determinations. 497 U.S. at 880-81, 885-86.

The Supreme Court held that it was impossible for the affidavits to enable the plaintiff

to challenge the land withdrawal review program because the program was not an agency

action within the meaning of the APA. Id. at 890. The Court also made clear that even if one

land status determination was a final agency action, the plaintiff could not predicate its

sweeping programmatic challenge on that single action. Id. at 892-93. Rather, under the terms

of the APA, a plaintiff must direct its attack against some particular agency action that causes

it harm. Id. at 891.

The Supreme Court reaffirmed the APAs bar on programmatic challenges in SUWA.

The environmental groups in SUWA alleged that BLM had violated FLPMAs mandate 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 thus sought to compel agency

action unlawfully withheld or unreasonably delayed under the APA. 5 U.S.C. 706(1). The

Supreme Court held that the plaintiffs claims did not fall within the scope of Section 706(1)

because a claim under [that section] can proceed only where a plaintiff asserts that an agency

failed to take a discreteagency action that it is requiredto take. SUWA, 542 U.S. at 64. The

important point in this conclusion is that a failure to act is properly understood to be limited,

as are the other items in 551(13), to a discreteaction. Id. at 63. The Court made clear that

[t]he limitation to discrete agency action precludes the kind of broad programmatic attack [the

Court] rejected in [NWF]. Id. at 64. Thus, the plaintiff in NWF would have fared no better if

[it] had characterized the agencys alleged failure to revise land use plans in proper fashion and



14/23

9

failure to consider multiple use . . . in terms of agency action unlawfully withheld under

706(1), rather than agency action not in accordance with law under 706(2). Id. at 65.

The Court explained that the APAs limitations not only protect agencies from undue

judicial interference, but also protect courts from entering general orders compelling

compliance with broad statutory mandates that would inject[] the judge into day-to-day agency

management. Id. at 66-67. The APAs programmatic challenge bar is motivated by

institutional limits on courts which constrain [their] review to narrow and concrete actual

controversies. Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir. 2000) (en banc).

Particularly relevant for this case, the Court in SUWA observed:

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 andburros in a manner that is designed to achieve and maintain a thriving natural

ecological balance, or to manage the [New Orleans Jazz National] [H]istorical

[P]ark in such a manner as will preserve and perpetuate knowledge andunderstanding of the history of jazz, or to manage the [Steens Mountain]

Cooperative Management and Protection Area for the benefit of present and

future generations. The prospect of pervasive oversight by federal courts over themanner and pace of agency compliance with such congressional directives is not

contemplated by the APA.

542 U.S. at 67 (emphasis added, internal citations omitted).

Under SUWA and NWF, challenges to BLMs general management of horses over a

state or region are non-justiciable. See Fund for Animals, 460 F.3d at 20-21. In Fund for

Animals, Plaintiffs challenged BLMs national proposal for managing acutely overpopulated

HMAs, a strategy that included several accelerated gathers and alternatives to horse adoption.

460 F.3d at 20. The court dismissed Plaintiffs claims under NWF and SUWA, noting that

while individual roundups might qualify as final agency action for purposes of an APA

challenge, BLMs proposed strategy did not, since the strategy represents the sum of many

individual actions, including some yet to be taken. Id.at 20-21 (internal quotation marks and



15/23


16/23

11

Plaintiffs failure to challenge any final agency actions requires that their APA claim be

dismissed. See Wild Fish Conservancy v. Jewell, 730 F.3d 791, 801 (9th Cir. 2013) (dismissing

vague challenge to Defendants operation of two dams); Ctr. for Biological Diversity v.

Veneman, 394 F.3d 1108, 1111-13 (9th Cir. 2005) (allegation that United States Forest Service

failed to consider classification of 57 rivers in Arizona did not challenge final agency action).

Any doubt concerning the programmatic nature of Plaintiffs claims is eliminated by its

sweeping prayer for relief. Plaintiffs do not seek to redress any particularized injury resulting

from a discrete final agency action, but instead request an injunction requiring Defendants to

promptly and fully comply with all the provisions of the [Wild Horse Act]. Am. Compl. at 94.

See also id. at 94(e) (requesting that the Court order BLM to generally comply with multiple

use principles). Similarly, Plaintiffs request that the Court impose and enforce compliance

with an idealized strategy for wild-horse management throughout Nevada, a program involving

bi-monthly inventories and horse-gathers, in addition to the disposition of thousands of animals

in long-term holding facilitates. Plaintiffs requested order would require the Court to oversee

and manage an enormous, resource-intensive, and protracted campaign of horse management

across the state. Specifically, the Court would be required to oversee at least 500 inventories of

HMAs each year (or roughly 10 per week).6

6Plaintiffs proposed order seeks a statewide inventory of horses no less frequently than once

every two months. Am. Compl. 94(b) As there are 85 HMAs in Nevada, a bimonthlyinventory would require 510 individual inventories each year.

Because BLM would be unable to dispose of the

gathered horses save through adoption or qualified sales, this campaign would lead to an

unsustainable increase in the horses placed in long-term holding.



17/23

12

In short, there is no question that Plaintiffs requests for relief are precisely the kind of

general orders compelling compliance with broad statutory mandates that the Court is not

empowered to issue. SUWA, 542 U.S. at 66-67. Accordingly, the Court should decline

Plaintiffs invitation to become rangemaster for hundreds of thousands of acres of federal

lands in Nevada, a role that would be incompatible with the Courts Article III duty to resolve

only particular Cases and Controversies. Natural Res. Def. Council v. Hodel, 624 F. Supp.

1045, 1062 (D. Nev. 1985), affd, 819 F.2d 927 (9th Cir. 1987).

B. The Duties Described by Plaintiffs Do Not Supply a Basis for Relief

As shown above, Plaintiffs amended complaint is essentially a programmatic challenge

to BLMs management of wild horses in Nevada that does not fall within the APAs narrow

waiver of sovereign immunity. Plaintiffs ability to invoke certain duties imposed by the Wild

Horse Act does not change this analysis, since Plaintiffs must allege that these duties impose a

discrete, mandatory obligation left unfulfilled by Defendants. For the reasons below, each of

Plaintiffs named duties fails this test.7

i.

Plaintiffs References to a State-Wide Inventory of Wild Horses Do

Not Challenge Final Agency Action

The Wild Horse Act provides that BLM shall maintain a current inventory of wild free-

roaming horses and burros on given areas of the public lands, 16 U.S.C. 1333(b)(1), and

further provides that BLM shall immediately remove excess animals as determined by

7

Even were Plaintiffs statewide-challenges cognizable, they would be time-barred. See WildHorse Observers Assn v. Jewell, 550 F. Appx 638 (10th Cir. 2013) (holding that failure-to-

inventory claim, filed in 2011, was time-barred where plaintiff had actual knowledge of its

alleged injury in 2002),pet. for cert. filed,No. 13-1385 (May 16, 2014). Given that Plaintiffsallege problems with BLMs management dating back to at least 1982, Am. Compl. 42, it is

clear that this suit could have been brought at least six years ago, and is therefore barred under

the six-year statute of limitations in 28 U.S.C. 2401(a).



18/23

13

inventories and threat to the range, id. at 1333(b)(2). Plaintiffs allege that Defendants have

failed to conduct and maintain an accurate, scientifically-based inventory of wild horses and

burros and to utilize scientific information in free roaming horse and burro management. Am.

Compl. 32-34.

For several reasons, the duties described in 16 U.S.C. 1333(b) do not provide a basis for

Plaintiffs challenge under the APA. First, inventories under the Wild Horse Act are not final

agency actions, and are therefore unreviewable under APA. See 5 U.S.C. 704 (Agency action

made reviewable by statute andfinalagency action for which there is no other adequate remedy

in a court are subject to judicial review.) (emphasis added). For an agency action to be final,

the action must (1) mark the consummation of the agencys decisionmaking process and (2) be

one by which rights or obligations have been determined, or from which legal consequences will

flow. Or. Natural Desert Assn v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)

(quoting Bennett v. Speak,520 U.S. 154, 178 (1997)). Inventories of wild horses ordinarily have

no legal effect, but instead provide the basis for subsequent final agency actions that do fall

within the APAs definition of that term, namely individual gathers of excess horses. Because

inventories of wild horses ordinarily have no legal consequence, Plaintiffs allegations of a

general failure to inventory are not cognizable.

Even if inventories did constitute final agency action as a matter of course, Plaintiffs

have failed to challenge a specific inventory or failure-to-inventory. As noted, the APA requires

that plaintiffs challenge a discrete rule, order, license, sanction, relief, or the equivalent or

denial thereof. 5 U.S.C. 551(13). Here, Plaintiffs have not identified any one of Nevadas

many individual inventories as having been delayed or defective, nor have Plaintiffs challenged

final agency action stemming from such an inventory or failure to inventory. Accordingly,



19/23

14

Plaintiffs references to wild-horse inventories in Nevada supply no grounds for this Court to

grant relief.

ii. Supreme Court Precedent Precludes Plaintiffs Challenges to BLMs

Maintenance of an Ecological Balance in Nevada

Plaintiffs further allege that BLM has failed to maintain wild horses and burros in a

thriving balance and multiple-use relationship in Nevada. Am. Compl. 39-47. See 16 U.S.C.

1333(b)(2). As the Supreme Court explained in SUWA with specific reference to Plaintiffs

exact claim this allegation of general non-compliance is precisely the type of abstract policy

disagreement falling outside the APA. SUWA, 542 U.S. at 67. Courts may set aside discrete,

final BLM actions that do not comply with 16 U.S.C. 1333(b)(1), id. at 69, but Plaintiffs have

identified no such actions in this case. Rather, Plaintiffs allege that the sum of all BLM actions

in Nevada supplies a cognizable failure-to-act claim: although Plaintiffs outline general ways in

which AMLs and HMAs might not supply a thriving ecological balance, they nowhere identify

individual, final agency actions that are allegedly flawed under these theories. See, e.g., Am.

Compl. 46 (Excess populations of HMAs in Nevada are numerous as are Defendants failure

to take proper action to reduce the populations.). Accordingly, this Court may not resolve

Plaintiffs allegation that Defendants have failed to keep [wild horses] in the ecological balance

and multiple use relationship demanded by [the Wild Horse Act]. Am. Compl. 61.

iii. Plaintiffs Have Not Challenged Final Agency Action Related to

BLMs Use of Long-Term Holding Facilities

Finally, Plaintiffs appear to allege that Plaintiffs have unlawfully employed long-term

holding facilities to house excess wild horses. Am. Compl. 62. As discussed above, BLM is

statutorily required to remove excess horses from overpopulated HMAs. After euthanizing those

horses that are old, sick, or lame, BLM must adopt-out, sell, or humanely destroy remaining



20/23


21/23

16

C. Plaintiffs Second and Third Claims Are Duplicative

In their second and third claims for relief, Plaintiffs seek declaratory and injunctive relief

with respect to the allegations in their first claim. SeeAm. Compl. 84-92.9

D.

Plaintiffs Procedural Due Process Arguments Do Not State a Valid Claimfor Relief

Because Plaintiffs

include a request for declaratory and injunctive relief in their prayer for relief, these claims are

duplicative and unnecessary. See, e.g., Leigh v. Salazar, NO. 3:11-cv-608-HDM, 2013 WL

1249824, at *2 n.1 (D. Nev. March 26, 2013). Accordingly, this Court must dismiss Plaintiffs

second and third claims.

Finally, Plaintiffs appear to assert that Defendants, through their alleged inaction, have

permitted wild horses to take the water rights of Plaintiffs members without due process. Am.

Compl. 83. Because Plaintiffs have not alleged a stand-alone claim under the Fifth Amendment

and have instead invoked their constitutional arguments under their APA claim, Am. Compl.

75-77, these arguments like the remainder of Plaintiffs APA arguments must fail for want

of a final agency action. Even were this not the case, courts addressing the issue have

consistently held that wild animals protected by the United States are not government

holding even qualifies as a final agency action that is subject to review under the APA. See

supra at 13.9

Elsewhere, Plaintiffs invoke the Declaratory Judgment Act, 28 U.S.C. 2201-02, as the source

of this Courts jurisdiction. The Declaratory Judgment Act, however, does not extend thejurisdiction of the federal courts. Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.

Ct. 843, 848 (2014) (quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671(1950)). Likewise, Plaintiffs invoke the Endangered Species Act (ESA) and the Clean Water

Act (CWA) as sources of the Courts jurisdiction, but have nowhere articulated claims under

either statute. In sum, neither the Declaratory Judgment Act, the CWA, nor the ESA supply anybasis for the Courts jurisdiction over Plaintiffs amended complaint.



22/23


23/23

18

NEVADA ASSOCIATION OF

COUNTIES, et al.

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF

THE INTERIOR, et al.

Defendants.

)

)

))

)

))

)

)

))

CASE NO. 3:13-cv-712-MMD-WGC

CERTIFICATE OF SERVICE

I hereby certify that on June 24, 2014, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system, which will send notification of such to the attorneys of

record.

/s/ Travis J. Annatoyn

TRAVIS J. ANNATOYN


de 43 - government mtn to dismiss, 6.24.14

Documents