legal naco appeal inteveor response brief.pdf
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No. 15-15620
_________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT _________________________
NEVADA ASSOCIATION OF COUNTIES, et al.,
Plaintiff-Appellant
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al.,
Defendant-Appellee
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Intervenors-Defendants-Appellees
_________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
_________________________
INTERVENOR-APPELLEE’SRESPONSE BRIEF
_________________________
William N. Lawton
Katherine A. Meyer
Meyer Glitzenstein & Eubanks
4115 Wisconsin Ave. NW, Ste. 210
Washington, DC 20016
(202) 588-5206
Counsel for Intervenors-Appellees
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i
RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Intervenor-
Defendant-Appellee American Wild Horse Preservation Campaign (“AWHPC”)
states that it has no parent corporations, and that it has no stock.
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ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF ISSUES ....................................................................................... 1
ADDENDUM ............................................................................................................ 2
STATEMENT OF THE CASE .................................................................................. 2
STATEMENT OF FACTS ........................................................................................ 4
I. STATUTORY AND REGULATORY BACKGROUND ............................ 4
A.
The Wild Free-Roaming Horses And Burros Act ...................................... 4
B. The Taylor Grazing Act ............................................................................. 8
C.
The Administrative Procedure Act ............................................................ 9
II.
WILD HORSES IN NEVADA ...................................................................10
III.
PROCEEDINGS BELOW ..........................................................................11
ARGUMENT ...........................................................................................................18
INTRODUCTION ................................................................................................18
I. NACO MISSTATED THE STANDARD OF REVIEW. ..........................19
II. THE DISTRICT COURT PROPERLY DISMISSED NACO’S CLAIMS
UNDER THE APA. ....................................................................................22
A.
The District Court Correctly Found That NACO’s Amended ComplaintAsserted An Impermissible Programmatic Attack On BLM’s
Management Of Wild Horses In Nevada. ................................................22
B. The District Court Correctly Dismissed NACO’s Claims Under Section
706(2) Of The APA Because NACO Failed To Identify Any Justiciable
Final Agency Action. ...............................................................................31
C. The District Court Properly Dismissed NACO’s Claims Under Section
706(1) Of The APA Because NACO Failed To Identify Any Discrete,
Non-Discretionary Action That The Judiciary Has Authority ToCompel. ....................................................................................................39
III. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS’ DUE
PROCESS CLAIM. ....................................................................................48
IV. THE DISTRICT COURT CORRECTLY DISMISSED THE AMENDED
COMPLAINT WITH PREJUDICE. ...........................................................51
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CONCLUSION ........................................................................................................54
ORAL ARGUMENT REQUEST ............................................................................55
STATEMENT OF RELATED CASE .....................................................................55
CERTIFICATE OF COMPLIANCE .......................................................................56
PROOF OF SERVICE .............................................................................................57
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iv
TABLE OF AUTHORITIES
CASES
Am. Horse Prot ection Ass’n, Inc. v. Frizzell ,
403 F. Supp. 1206 (D. Nev. 1975) ......................................................................40
Am. Horse Protection Ass’n, Inc. v. Watt ,
694 F.2d 1310 (D.C. Cir. 1982)...........................................................................40
Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40 (1999) ..............................................................................................49
Ascon Properties, Inc. v. Mobil Oil Co.,
866 F.2d 1149 (9th Cir. 1989) .............................................................................54
Ashcroft v. Iqbal ,
556 U.S. 662 (2009) ............................................................................... 19, 20, 53
Barnett v. US Air, Inc.,
228 F.3d 1105 (9th Cir. 2000) ...................................................................... 50, 51
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................... 19, 20, 38, 46, 53
Blixseth v. Yellowstone Mountain Club,
796 F.3d 1004 (9th Cir. 2015) .............................................................................53
Bradshaw v. United States,
47 Fed. Cl. 549 (Fed. Cl. 2000) ...........................................................................50
Colo. Wild Horse and Burro Coal., Inc. v. Salazar ,
639 F. Supp. 2d 87 (D.D.C. 2009)......................................................................... 7
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Colvin Cattle Co. v. United States,
468 F.3d 803 (Fed. Cir. 2006) .............................................................................49
Conley v. Gibson,
355 U.S. 41 (1957) ..............................................................................................20
Daniels- Hall v. National Educ. Ass’n,
629 F.3d 992 (9th Cir. 2010) .................................................................. 21, 44, 47
Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) ............................................................................................43
Dream Palace v. County of Maricopa,
384 F.3d 990 (9th Cir. 2003) ...............................................................................24
Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) ...................................................................... 52, 53
Fallini v. Hodel ,
783 F.2d 1343 (9th Cir. 1986) .............................................................................46
Fallini v. United States,
56 F.3d 1378 (Fed. Cir. 1995) .............................................................................50
FDIC v. Garner ,
126 F.3d 1138 (9th Cir. 1997) ...................................................................... 18, 51
Florida Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ............................................................................................39
Fund for Animals v. U.S. Bureau of Land Management ,
357 F. Supp. 2d 225 (D.D.C. 2004) ....................................................................37
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Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,
460 F.3d 13 (D.C. Cir. 2006) ....................................................................... passim
Grant School Dist. No. 3 v. Dombeck ,
126 Fed. Appx. 823 (9th Cir. 2005) ....................................................................54
In Def. of Animals v. U.S. Dep’t. of Interior ,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) ...........................................................6, 44
In Def. of Animals v. U.S. Dep't of Interior,
751 F.3d 1054 (9th Cir. May 12, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . .6, 40, 44
Institute for Wildlife Protection v. Norton,
205 Fed. Appx. 483 (9th Cir. 2006) ............................................................. 23, 54
Leigh v. Jewell ,
No. 3:11-cv-00608, 2014 WL 31675 (D. Nev. Jan. 3, 2014) ..............................26
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................36
Lujan v. National Wildlife Federation,
497 U.S. 871 (1990) .................................................................................... passim
Maya v. Centex Corp.,
658 F.3d 1060 (9th Cir. 2011) .............................................................................21
McCalla v. Royal MacCabees Life Ins. Co.,
369 F.3d 1128 (9th Cir. 2004) .............................................................................30
Mountain States Legal Foundation v. Hodel ,
799 F.2d 1423 (10th Cir. 1986) ...........................................................................50
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Norton v. Southern Utah Wilderness Alliance
542 U.S. 55 (2004) ...................................................................................... passim
Neitzke v. Williams,
490 U.S. 319 (1989) ............................................................................................52
ONRC Action v. Bureau of Land Management ,
150 F.3d 1132 (9th Cir. 1998) ...................................................................... 23, 54
Revis v. Slocomb Industries, Inc.,
765 F. Supp. 1212 (D. Del. 1991) .......................................................................19
Salameh v. Tarsadia Hotel ,726 F.3d 1124 (9th Cir. 2013) ...................................................................... 21, 54
San Luis Unit Food Producers v. United States,
709 F.3d 798 (9th Cir. 2013) ............................................................ 33, 40, 45, 54
Seattle Sch. Dist., No. 1 v. B.S.,
82 F.3d 1493 (9th Cir. 1996) ...............................................................................51
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) ..............................................................................................29
Sierra Club v. Peterson,
228 F.3d 559 (5th Cir. 2000) ...............................................................................32
Sierra Forest Legacy v. Sherman,
646 F.3d 1161 (9th Cir. 2011) .............................................................................32
Stout v. U.S. Forest Service,
869 F. Supp. 2d 1271 (D. Or. 2012) ....................................................................44
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Terenkian v. Republic of Iraq,
694 F.3d 1122 (9th Cir. 2012) .............................................................................21
United States v. 14.02 Acres of Land More or Less in Fresno County,
547 F.3d 943 (9th Cir. 2008) ...............................................................................10
United States v. Fuller ,
409 U.S. 488 (1973) .............................................................................................. 9
United States v. Oakar ,
111 F.3d 146 (D.C. Cir. 1997).............................................................................30
White v. Lee,
227 F.3d 1214 (9th Cir. 2000) .............................................................................21
Wild Fish Conservancy v. Jewell ,
730 F.3d 791 (9th Cir. 2013) ...............................................................................54
Willow Creek Ecology v. U.S. Forest Service,
225 F. Supp. 2d 1312 (D. Utah 2002) .................................................................40
Zixiang Li v. Kerry,
710 F.3d 995 (9th Cir. 2013) ...............................................................................38
STATUTES
5 U.S.C. § 551(13) ...................................................................................................32
5 U.S.C. § 706(1) ............................................................................................. passim
5 U.S.C. § 706(2) ............................................................................................. passim
16 U.S.C. §§ 1331 – 1340 ................................................................................... 1, 4, 5
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16 U.S.C. § 1332(f) .................................................................................................... 7
16 U.S.C. § 1333(a) ......................................................................................... passim
16 U.S.C. § 1333(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6, 42
16 U.S.C. § 1333(b)(2)..................................................................................... passim
16 U.S.C. § 1334 ..................................................................................................8, 46
28 U.S.C. § 2401(a) .................................................................................................35
42 U.S.C. §§ 4321-4370 ............................................................................................ 6
43 U.S.C. § 1712(a) ................................................................................................... 5
43 U.S.C. § 315b ..................................................................................................9, 49
43 U.S.C. § 315f ......................................................................................................... 9
RULES
Federal Rule of Appellate Procedure 26.1 ................................................................. i
Federal Rule of Appellate Procedure 28(d) ............................................................... 2
Federal Rule of Appellate Procedure 30-1.7 ............................................................. 3
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) .............................................56
Federal Rule of Appellate Procedure 32(a)(7)(C) ...................................................56
Federal Rule of Civil Procedure 12(b)(1) ............................................... 3, 13, 21, 54
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Federal Rule of Civil Procedure 12(b)(6) ............................................... 3, 13, 21, 54
Federal Rule of Civil Procedure 12(c) .................................................................3, 13
Federal Rule of Civil Procedure 15(a)(1) ................................................................14
Ninth Circuit Rule 32-1............................................................................................56
REGULATIONS
40 C.F.R. § 1502.14(a) ............................................................................................... 6
43 C.F.R. § 4700.0-2 .................................................................................................. 5
43 C.F.R. § 4700.0-5(d) ............................................................................................. 6
43 C.F.R. § 4710.1 ..................................................................................................... 6
43 C.F.R. § 4710.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..6
43 C.F.R. § 4710.3-1 .................................................................................................. 6
43 C.F.R. § 4710.5 ...................................................................................................36
43 C.F.R. § 4710.5(a) ...................................................................................... 8, 9, 43
43 C.F.R. § 4720.2-1 ............................................................................................8, 46
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STATEMENT OF ISSUES
1.
Whether the district court was correct to dismiss a case brought by a
consortium of livestock grazing organizations against the Bureau of Land
Management (“BLM”) to compel the agency to completely revamp its entire
program for managing wild horses and burros throughout Nevada under the Wild
Free Roaming Horses and Burros Act (“Wild Horse Act” or “WHA”), 16 U.S.C. §
1331 – 1340, when the district court found that the case was a programmatic
challenge foreclosed by the Supreme Court’s decisions in Lujan v. National
Wildlife Federation, 497 U.S. 871 (1990), and Norton v. Southern Utah Wilderness
Alliance (“SUWA”), 542 U.S. 55 (2004)?
2. Whether the district court correctly dismissed Plaintiffs’ claims under
section 706(2) of the APA, which provides that a reviewing court shall set aside
“agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law,” 5 U.S.C. § 706(2), when the district court found that
Plaintiffs had failed to challenge any specific final agency action by the BLM or
explain how any final agency action had harmed any Plaintiff?
3. Whether the district court correctly dismissed Plaintiffs’ claims under
section 706(1) of the APA, which provides that a reviewing court shall “compel
agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1),
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when the district court found that Plaintiffs had failed to identify any non-
discretionary, ministerial duty that BLM had failed to carry out?
4. Whether the district court properly dismissed Plaintiffs’ Amended
Complaint with prejudice when, before Plaintiffs filed their Amended Complaint,
the Intervenor-Appellant had moved to dismiss the case precisely because Lujan
and SUWA bar the programmatic challenge Plaintiffs attempted to bring, yet when
Plaintiffs filed the Amended Complaint they failed to cure any of the defects in the
original Complaint?
ADDENDUM
Pertinent statutory and regulatory provisions appear in an Addendum.
STATEMENT OF THE CASE
This appeal concerns a sweeping challenge to the BLM’s entire program for
protecting and managing wild horses throughout Nevada brought by a consortium
of grazing interests led by the Nevada Association of Counties (“NACO”).1
Alleging pervasive failures to properly implement the Wild Horse Act, NACO
sought a declaratory judgment broadly “declaring the duties and responsibilities of
[BLM] under the [WHA] and applicable rules, regulations, and directives,”
requested an injunction “requiring [BLM] to promptly and fully comply with all
1 Pursuant to Fed. R. App. P. 28(d), this brief refers to parties by name. For
brevity, the brief refers to Appellants as “NACO” unless greater specificity isnecessary.
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provisions of the [WHA]” and to “[a]dhere to multiple use principles,” and further
asked the district court to “retain jurisdiction to monitor and enforce compliance.”
Am. Compl. ¶¶ 93 – 95, ER 67 – 68. As the district court properly found, NACO
“essentially ask[ed] the [court] to compel compliance with the [WHA] and
refashion [BLM’s] management of wild horses and burros in Nevada.” Dist. Ct. at
7, ER 7.
Intervenor-Appellee-Defendant American Wild Horse Preservation
Campaign (“AWHPC”) filed a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), and because its Proposed Answer had been filed
with its motion to intervene, alternatively moved for a judgment on the pleadings
under Rule 12(c), asserting that NACO’s Complaint was an impermissible
programmatic challenge to BLM’s administration of the WHA under both Lujan,
497 U.S. at 891 – 94, and SUWA, 555 U.S. at 64. Mem. in Supp. Mot. to Dismiss,
Docket Entry 38 (hereinafter “MTD”), AISER 7– 38.2 BLM and another
Defendant-Intervenor filed similar motions to dismiss. Dist. Ct. at 2, ER 2. After
requesting a “stay” of AWHPC’s motion to dismiss on the grounds that it would be
filing an amended complaint that would render resolution of that motion
“unnecessary,” AISER 5, NACO eventually filed an Amended Complaint that did
2 As permitted by Fed. R. App. P. 30-1.7, AWHPC has filed supplemental excerpts
of record. To distinguish these from any excerpts of record filed by other parties,
AWHPC cites its supplemental excerpts as AISER, for Appellee-Intervenor’sSupplemental Excerpts of Record.
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not address any of the grounds for AWHPC’s motion to dismiss. ER 79. The
district court subsequently granted AWHPC’s motion, held that the other parties’
motions to dismiss were moot, and dismissed the case with prejudice.
STATEMENT OF FACTS
To place AWHPC’s arguments in context, it is important to discuss not only
the statutory and regulatory provisions that apply here, but also to provide a
detailed history of the litigation that occurred in the district court.
I.
STATUTORY AND REGULATORY BACKGROUND
A. The Wild Free-Roaming Horses And Burros Act
Congress enacted the WHA in 1971, proclaiming that wild horses are “living
symbols of the rugged independence and tireless energy of our pioneer heritage”
and “a national esthetic resource.” S. Rep. No. 92-242, at 1 (1971). Congress
further declared that wild free-roaming horses and burros “contribute to the
diversity of life forms within the Nation and enrich the lives of the American
people.” 16 U.S.C. § 1331. Thus, Congress sought to guarantee that “wild free-
roaming horses and burros shall be protected from capture, branding, harassment,
[and] death,” and “be considered in the area where presently found, as an integral
part of the natural system of the public lands.” Id. (emphasis added).
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The WHA directs the Secretary of the Department of Interior, through BLM,
“to protect and manage wild free-roaming horses and burros as components of the
public lands.” 16 U.S.C. § 1333(a); id. § 1331 (stating that the animals “are to be
considered . . . as an integral part of the natural system of the public lands”); 43
C.F.R. §§ 4700.0-2 (instructing BLM to manage wild horses and burros “under the
principle of multiple use”). As a result, BLM must consider protection of wild
horses when preparing or amending Resource Management Plans (“RMPs”) under
the Federal Land Policy Management Act (“FLPMA”). See 43 U.S.C. § 1712(a)
(requiring RMPs for public lands); see also BLM, Wild Horses and Burros
Management Handbook H-4700-1, Rel. 4-116, at 7-8 (June 2010) (“ BLM
Handbook ”) (requiring consideration of wild horses when formulating land use
plans).3
The WHA further mandates that the Secretary “shall manage wild free-
roaming horses and burros in a manner that is designed to achieve and maintain a
thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). To
achieve this directive, the WHA provides that the Secretary “shall maintain a
current inventory of wild free-roaming horses and burros on given areas of public
3 BLM’s Handbook is available at
http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf .
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lands,” id . § 1333(b)(1), which BLM does for individual herd management areas
(“HMA”). 43 C.F.R. §§ 4710.2, 4710.3-1; BLM Handbook at 30 – 35.
BLM establishes HMAs “for the maintenance of wild horse and burro
herds,” 43 C.F.R. § 4710.3-1, based on the geographic areas that wild horses used
when Congress enacted the WHA in 1971. 43 C.F.R. § 4700.0-5(d). BLM
designates and modifies HMAs when preparing RMPs. 43 C.F.R. § 4710.1; BLM
Handbook at 7 – 8. HMAs are also subject to Herd Management Area Plans
(“HMAP”). 43 C.F.R § 4710.3-1; BLM Handbook at 36 – 43.
BLM sets an appropriate management level (“AML”) for each HMA
through a planning process that requires public notice and comment, as well as
compliance with the National Environmental Policy Act (“NEPA”) (42 U.S.C. §§
4321-4370), which requires all agencies to examine the environmental impacts of
their decisions and to “[r]igorously explore” alternative actions that would have
less adverse impacts, 40 C.F.R. § 1502.14(a). BLM Handbook at 18. These
“AMLs are determined through revisions to the applicable [RMP].” In Def. of
Animals v. U.S. Dep’t. of Interior , 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012),
aff’d , 751 F.3d 1054 (9th Cir. May 12, 2014).
Because the WHA requires that “[a]ll management activities shall be at the
minimal feasible level,” 16 U.S.C. § 1333(a), BLM aims to maintain a “thriving
natural ecological balance” on the public range, id., by, in part, expressing AMLs
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“as a population range within which [wild horses] can be managed for the long
term” in a given HMA. BLM Handbook at 16 – 17. Local BLM offices “have
significant discretion to determine their own methods of computing AML[s] for the
herds they manage.” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460
F.3d 13, 16 (D.C. Cir. 2006). Thus, as the Supreme Court observed in SUWA, the
WHA provides BLM with a “broad statutory mandate” to carry out its duties under
the WHA. 542 U.S. at 66 – 67.
The WHA further directs BLM to manage wild horses by removing “excess”
animals from public lands, but only after BLM determines that (1) “an
overpopulation [of wild horses] exists on a given area of the public lands” and (2)
“action is necessary” to remove such animals. 16 U.S.C. § 1333(b)(2); see also
Colo. Wild Horse and Burro Coal., Inc. v. Salazar , 639 F. Supp. 2d 87, 98 (D.D.C.
2009) (noting that “[a] prerequisite to removal under the [WHA] is that BLM first”
make an excess determination). Thus, the WHA defines “excess animals” as those
wild horses that BLM formally determines “must be removed from an area in order
to preserve and maintain a thriving natural ecological balance and multiple-use
relationship in that area.” 16 U.S.C. § 1332(f).
In addition to removing “excess” wild horses from public lands, BLM has
discretion to “close appropriate areas of the public lands to grazing use by all or a
particular kind of livestock” if “necessary to provide habitat for wild horses.” 43
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C.F.R. § 4710.5(a). BLM may also close public lands to grazing permanently or
temporarily “[a]fter appropriate public consultation,” id. § 4710.5(c), which entails
a “site-specific environmental analysis and issuance of a proposed and final
decision.” BLM Handbook at 9. Once that process has been completed, BLM
must then issue a formal “Notice of Closure” to the “affected and interested
parties.” 43 C.F.R. § 4710.5(c).
In addition to vesting BLM with authority and discretion to manage wild
horses on public lands, section 4 of the WHA also protects wild horses that stray
onto private lands. 16 U.S.C. § 1334. Thus, landowners may not remove or kill
such horses. Id. Instead, a landowner may inform BLM that wild horses have
strayed onto its private land, and BLM “shall arrange to have the animals
removed.” Id. To trigger this requirement, a landowner must provide a “written
request” to BLM indicating “the numbers of wild horses or burros, the date(s) the
animals were on the land, legal description of the private land, and any special
conditions that should be considered . . . .” 43 C.F.R. § 4720.2-1. After BLM
receives that request, it will arrange to remove wild horses from such private lands
“as soon as practicable.” Id.
B. The Taylor Grazing Act
Under the Taylor Grazing Act (“TGA”), 43 U.S.C. §§ 315-315r, the
Secretary of the Interior, through BLM, is “authorized” to issue permits for the
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grazing of livestock on public lands “upon the payment . . . of reasonable fees.” 43
U.S.C. § 315b. However, as the statute’s text specifies, “the creation of a grazing
district or the issuance of a [grazing] permit . . . shall not create any right, title,
interest, or estate in or to” public lands. Id. § 315b (emphasis added); see also
United States v. Fuller , 409 U.S. 488, 494 (1973) (“The provisions of the [TGA] . .
. make clear the congressional intent that no compensable property right be created
in the permit lands themselves as a result of the issuance of the permit.”) (emphasis
added). The TGA further provides that the Secretary “is authorized, in his
discretion, to . . . classify any lands . . . within a grazing district” as “more valuable
or suitable for any other use,” 43 U.S.C. § 315f (emphasis added), including use
by wild horses. 16 U.S.C. § 1333(a); see also 43 C.F.R. § 4710.5(a) (stating that
BLM may prohibit grazing on the public lands where necessary to protect wild
horses).
C. The Administrative Procedure Act
The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 – 706, provides
for judicial review of administrative agencies’ actions and failures to act. Pursuant
to section 706(2) of the APA, “the reviewing court shall . . . hold unlawful and set
aside agency action, findings and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
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Under section 706(1), “the reviewing court shall . . . compel agency action
unlawfully withheld or unreasonably delayed.” Id. § 706(1).
II.
WILD HORSES IN NEVADA
Nevada is home to roughly half of the nation’s wild horses and burros. Am.
Compl. ¶ 44, ER 48. These horses and burros live in eighty-five different HMAs
throughout the state, which encompass over 14 million acres of BLM-managed
public lands. Ranchers use these same public lands to graze livestock at below-
market, taxpayer-subsidized rates. Despite the fact that grazing permits create no
right or title to public lands, these ranchers view wild horses as unwanted
competition for the limited forage and water on public lands in Nevada. E.g., Am.
Compl. ¶¶ 46 – 47, 67 – 69, ER 50 – 51, 58 – 60.4
4 See U.S. Dept. Of Interior, BLM, Herd Area and Herd Management AreaStatistics FY 2013, at 18-22, available at
http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.File.dat/HMA_HA%20Stats%20FY2013.pdf (describing HMAs including those in
Nevada); see also Carol Hardy Vincent, Cong. Research Serv., RS21232, Grazing
Fees: Overview And Issues at 1 (2012), available at ,
https://www.fas.org/sgp/crs/misc/RS21232.pdf (noting that BLM charges below-
market fees for grazing permits and generally spends more money subsidizinggrazing than it receives from grazing fees). See also United States v. 14.02 Acres
of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (notingthat a court may properly take judicial notice of “records and reports of
administrative bodies” without abusing its discretion or converting a Rule 12
motion into a motion for summary judgment).
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Not surprisingly, Plaintiffs contend that Nevada contains too many wild
horses competing for grazing and water resources with their livestock.
Accordingly, on September 18, 2012, Plaintiff NACO sent a letter to Kenneth
Salazar — then Secretary of the Department of Interior —outlining “continuing
problems, failures to act, inappropriate actions, and delays to act of Defendants and
their predecessors with respect to the [WHA].” Id . ¶ 53, ER 52. When Secretary
Salazar failed to respond to this letter “for an extended period of time,” on January
22, 2013 NACO sent a second letter “strongly urg[ing] [his] office to take steps to
bring BLM into compliance with the provisions of the [WHA].” Id . ¶ 54, ER 53.
On April 23, 2013, Edwin Roberson, BLM’s Assistant Director of
Renewable Resources and Planning, responded to NACO’s letter inviting “NACO
to meet with BLM’s senior leadership to collaborate on viable program solutions
that would meet NACO’s concerns.” Id . ¶ 55, ER 53 – 54. Almost three months
later, NACO allegedly accepted the invitation to meet with BLM, but as of the
filing of the Amended Complaint, this meeting had not yet taken place. Id . ¶ 56,
ER 54.
III.
PROCEEDINGS BELOW
On December 30, 2013, NACO filed a Complaint challenging BLM’s entire
program for the management of wild horses in Nevada and broadly alleging that
BLM has failed to properly implement the WHA throughout the state. ER 74.
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Additionally, the Complaint alleged that BLM had violated Plaintiffs’ due process
rights. Id . On April 2, 2014, the district court granted AWHPC’s motion to
intervene, and on May 29, 2014, AWHPC filed a motion to dismiss.5 ER 77 – 78,
MTD, AISER 7 – 38.
AWHPC’s motion to dismiss detailed numerous problems with the
Complaint, explaining that it directly conflicted with the holdings of Lujan, 497
U.S. at 891 – 94, and SUWA, 542 U.S. at 67. See MTD 8 – 24, AISER 21 – 37.
Specifically, AWHPC’s motion explained that under Lujan, federal courts may
review only “final agency actions” under section 706(2) of the APA, and that the
Complaint had failed to identify any such final agency action. MTD 10, AISER 22
(citing Lujan, 497 U.S. at 894). Similarly, AWHPC’s motion noted that SUWA
held that pursuant to section 706(1) of the APA courts may compel only “discrete,”
“non-discretionary” agency duties, and explained that the Complaint had failed to
identify any such non-discretionary duty. Id. at 19 (citing SUWA, 542 U.S. at 64).
AWHPC’s motion further explained that the Supreme Court has firmly established
that litigants may not seek “wholesale improvement [of an agency’s administration
of a law] by court decree, rather than in the offices of the [agency] or the halls of
5 AWHPC and the other Intervenor-Defendants are advocates for the preservationand well-being of wild horses and burros. As the district court found, they have a
“significant protectable interest in preserving these wild animals under the Wild
Horse Act and other federal laws and regulations.” Order Granting Intervention,April 2, 2014, Docket Entry 29, at 6, AISER 40.
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Congress, where programmatic improvements are normally made.” Id. at 1
(quoting Lujan, 497 U.S. at 891 (emphasis in original)); see also SUWA, 542 U.S.
at 64 – 65 (reiterating this standard and explaining that it also applies to claims
under section 706(1) of the APA). Finally, AWHPC explained that the Plaintiffs
had failed to allege a viable due process claim because they failed to allege a
protected property interest, or to identify any process to which the Plaintiffs were
due, let alone any process of which they were deprived. MTD at 25, AISER 37.
Thus, AWHPC provided detailed explanations for why each claim in the
Complaint was legally deficient under all of the governing case law.6
Instead of filing a response to AWHPC’s motion to dismiss, on June 5, 2014
NACO filed a motion to stay AWHPC’s motion on the grounds that it intended to
file an amended complaint that would render a decision on AWHPC’s motion
“unnecessary.” AISER 5. On June 17, 2014, NACO filed a motion to amend its
complaint, with a proposed Amended Complaint attached. ER 78. The proposed
Amended Complaint added two additional Plaintiffs but did not address any of the
6 AWHPC filed its motion to dismiss under Federal Rule of Civil Procedure12(b)(1) for lack of subject matter jurisdiction, and alternatively under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. See MTD at 2 n.1,AISER 14. In addition, because AWHPC had been required to file a proposed
Answer with its motion to intervene, AWHPC also made clear that, if necessary,
its motion could also be considered one for judgment on the pleadings pursuant toFederal Rule of Civil Procedure 12(c). See id.
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defects AWHPC had painstakingly identified in its motion to dismiss.
Consequently, on June 26, 2014 AWHPC renewed its motion to dismiss. Id.
Again, instead of filing a response to AWHPC’s motion to dismiss, on July
8, 2014, NACO requested a further extension of time to respond. Id. The district
court granted that motion the next day, requiring NACO to respond to AWHPC’s
motion to dismiss by August 15, 2014 and indicating that it would not allow any
further extensions of time. ER 79. In the same Order, the district court granted
NACO’s motion to file its Amended Complaint on the grounds that pursuant to
Federal Rule of Civil Procedure 15(a)(1), NACO had the right to file an amended
complaint without leave of the court. Id. Nevertheless, NACO did not actually file
its Amended Complaint until July 21, 2014. Id.
Thus, by the time it actually filed its Amended Complaint, NACO had
AWHPC’s motion to dismiss— which detailed the fatal defects in the original
Complaint — for nearly two months. Nevertheless, the Amended Complaint that
was finally filed merely added two more Plaintiffs and did not address any of the
numerous pleading defects that AWHPC had identified.
On the contrary, the Amended Complaint carried forward NACO’s broad,
programmatic attack on BLM’s entire program for the management of wild horses
in Nevada. Thus the Amended Complaint included general examples of entire
categories of alleged agency misbehavior, such as basing decisions on “ political
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considerations and their own preferences,” Am. Compl. ¶ 79, ER 62 – 63; making
improper and allegedly “unscientific” population surveys and determinations
regarding AMLs, the presence or absence of excess horses, and whether to remove
horses, id. ¶¶ 35 – 38, 41, 80, ER 44 – 47, 63; decisions to reduce or suspend grazing
on public lands, id. ¶¶ 12(b), 43, ER 30 – 31, 48; and the “willful failure to sell or
destroy” horses, instead sending them to long-term holding, id. ¶¶ 30, 62, ER 42 –
43, 56 – 57. Similarly, the Amended Complaint repeated the original Complaint’s
request for programmatic relief, requesting a declaratory judgment “declaring the
duties and responsibilities of [BLM] under the [WHA],” and an injunction
requiring BLM “to promptly and fully comply with all the provisions of the Act,”
as well as requesting that the district court “retain jurisdiction in order to monitor
and enforce [BLM’s] compliance” with the WHA. Am. Compl. ¶¶ 93 – 94, ER 67 –
68. In short, the Amended Complaint repeated NACO’s original invitation for the
district court to take on the role of manager of wild horses in Nevada.
On March 12, 2015, after full briefing by the parties, the district court
granted AWHPC’s motion to dismiss, r easoning that the Amended Complaint
failed to identify any actions unlawfully withheld or any final agency actions that
harmed any Plaintiff, and instead brought only an impermissible programmatic
attack of the kind that was barred by Lujan. Dist. Ct. 6 – 8, ER 6 – 8. Although the
district court “recognize[d] that it may be frustrating for Plaintiffs to identify final
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agency actions for review when they are concerned with Federal Defendants’
allegedly ‘consistent, persistent, [and] significant’ missteps under the Wild Horse
Act,” it nevertheless explained that “‘this is the traditional, and remains the normal,
mode of operation of the courts.’” Dist. Ct. at 8, ER 8 (citing Lujan v. National
Wildlife Federation, 497 U.S. 871, 894 (1990)). In light of all the circumstances of
the litigation, the district court dismissed the case with prejudice.
SUMMARY OF ARGUMENT
1.
The district court correctly found that NACO’s challenge was an
impermissible programmatic attack on BLM’s administration of the Wild Horse
Act throughout the state of Nevada that is foreclosed by Lujan, 497 U.S. at 891 –
94, and, as demonstrated below, is further barred by SUWA, 542 U.S. at 64 – 65.
Seeking nothing less than a complete overhaul and continuous oversight of BLM’s
management of wild horses, NACO essentially invited the district court to supplant
BLM as the manager of wild horses throughout the state. Following clearly
applicable Supreme Court precedents barring such programmatic attacks, the
district court correctly declined NACO’s invitation and dismissed the case.
2.
The district court also correctly found that NACO entirely failed to
challenge any “final agency action,” as required under section 706(2) of the APA
and the Supreme Court’s teaching in Lujan, 497 U.S. at 891 – 894. Although
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NACO broadly alleged rampant violations of the WHA, it never identified a single
final agency action that has caused injury to any Plaintiff. Hence, because courts
may review only final agency actions under the APA, the district court correctly
dismissed NACO’s claims under section 706(2) of the APA.
3. The district court also properly determined that NACO wholly failed
to identify any discrete, mandatory agency action that BLM has failed to take,
which is required under section 706(1) of the APA and the Supreme Court’s ruling
in SUWA, 542 U.S. at 65 – 67. Although NACO broadly alleged widespread
failures to “properly” implement the WHA, NACO fatally misconstrued the WHA,
which, as the Supreme Court observed in SUWA, vests BLM with “broad”
statutory authority to manage wild horses, 542 U.S. at 67. Because NACO failed
to identify any non-discretionary, ministerial duty that BLM has failed to carry out,
the district court correctly dismissed NACO’s claims under section 706(1) of the
APA.
4. The district court also correctly dismissed NACO’s allegation of due
process violations, which, as the district court found, was inextricably linked to its
fatally flawed APA claims. Additionally, the district court correctly found that
NACO failed to identify any protected property interest held by any Plaintiff or to
explain what process any Plaintiff was due but denied.
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5. Finally, although by failing to actually include an argument on this
issue NACO has waived it here, see FDIC v. Garner , 126 F.3d 1138, 1145 (9th
Cir. 1997), under the circumstances of this particular case, the district court also
properly dismissed NACO’s claims with prejudice. Moreover, any amendment
would have been entirely futile because clear Supreme Court precedents bar
NACO’s programmatic challenge. While NACO is free to file another case should
there come a time when it, or any other Plaintiff, is actually injured by a discrete
agency action or failure to comply with a non-discretionary duty, because neither
its original Complaint nor its Amended Complaint included any such allegations,
the district court properly dismissed this case with prejudice.
ARGUMENT
Introduction
NACO essentially argued that BLM lets wild horses run rampant throughout
Nevada in dereliction of the agency’s purported duties under the WHA. E.g. Op.
Br. at 20 (arguing that BLM’s putative mismanagement of wild horses “impos[es]
a disproportionate share of the ecological, economic, and other impacts of excess
[horse] populations on Nevada’s resources”). However, because the WHA
provides no free-standing cause of action, NACO brought its claims under the
APA, claiming that it was entitled to relief under both sections 706(1) and 706(2)
of the APA. E.g., Op. Br. at 6 – 9.
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However, as discussed more fully below, NACO’s case cannot go forward
because NACO failed to bring a viable claim under either section of the APA.
Thus, under binding Supreme Court precedent, claims under section 706(2) may
proceed only where a plaintiff challenges final agency action. Lujan, 497 U.S. at
894. Similarly, claims under section 706(1) may proceed only where a plaintiff
identifies a discrete action an agency is required to take. SUWA, 542 U.S. at 64.
Because NACO failed to identify either a final agency action or any non-
discretionary duty, and instead tried to levy a broad, programmatic attack on the
way BLM manages wild horses in Nevada — a quintessential example of the type
of challenge the Supreme Court has repeatedly confirmed the judiciary has no
authority to consider —the district court properly dismissed NACO’s claims.
I.
NACO MISSTATED THE STANDARD OF REVIEW.
To begin with, NACO misstated the standard of review applicable here,
asserting that “[a] motion to dismiss cannot be granted unless it appears beyond a
reasonable doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Op. Br. at 38. In support, NACO cites Revis v.
Slocomb Industries, Inc., 765 F. Supp. 1212, 1213 (D. Del. 1991), which not only
is non-binding on this Court, but also pre-dates important, contrary Supreme Court
rulings. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v.
Iqbal , 556 U.S. 662 (2009). In reality, NACO’s “no set of facts” language derives
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from Conley v. Gibson, 355 U.S. 41, 45 – 46 (1957), which, after Twombly, simply
is no longer the applicable standard. See Twombly, 550 U.S. at 561 – 63 (noting that
this particular phrase “has earned its retirement” and “is best forgotten”).
Indeed, the Supreme Court has expressly disclaimed the notion that “a
wholly conclusory statement of a claim would survive a motion to dismiss
whenever the pleadings left open a possibility that a plaintiff might later establish
some set of undisclosed facts to support recovery.” Id. at 561. Unfortunately for
NACO, it entirely ignored these admonitions when drafting its two Complaints and
in its briefing to the district court and this Court, instead insisting that it was
sufficient for the Complaint to make only broad, general allegations. See Op. Br.
at 15, 18, 26 (asserting that the Complaint contained sufficient allegations because
other relevant facts could be produced later through an “evidentiary showing”).
Thus, it is now well established that a complaint must state “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570
(emphasis added); see also Iqbal , 556 U.S. at 678 (“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.”). Therefore, although courts
accept as true “well- pleaded allegations of material fact,” they are not obligated to
accept as true “allegations that contradict . . . matters properly subject to judicial
notice, or allegations that are merely conclusory, unwarranted deductions of fact,
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or unreasonable inferences.” Daniels- Hall v. National Educ. Ass’n, 629 F.3d 992,
998 (9th Cir. 2010).
Moreover, because this Court reviews a motion to dismiss de novo, this
Court may affirm a district court’s ruling “on any proper ground, even if the
district court did not reach the issue or relied on different grounds or reasoning.”
Salameh v. Tarsadia Hotel , 726 F.3d 1124, 1129 (9th Cir. 2013); see also White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (noting that courts review dismissals for
lack of subject matter jurisdiction de novo). Accordingly, this Court may affirm
the district court’s ruling if it finds that the Amended Complaint fails either to
establish subject matter jurisdiction under FRCP 12(b)(1) or fails to state a claim
under FRCP 12(b)(6). See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th
Cir. 2012) (applying the Supreme Court’s “plausible” pleading requirement to a
motion to dismiss for lack of subject matter jurisdiction; Salameh, 726 F.3d at
1129 (applying the same standard to a motion under Rule 12(b)(6)).7
7 Although one panel of this Court found Twombly “ill-suited to application in the
constitutional standing context” in response to a motion to dismiss under Rule12(b)(1), as opposed to the 12(b)(6) context,” Maya v. Centex Corp., 658 F.3d
1060, 1067 (9th Cir. 2011), this holding has no relevance here because this Court
may affirm the district court’s ruling under either FRCP 12(b)(1) or FRCP12(b)(6).
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II.
THE DISTRICT COURT PROPERLY DISMISSED NACO’S
CLAIMS UNDER THE APA.
A.
The District Court Correctly Found That NACO’s Amended
Complaint Asserted An Impermissible Programmatic AttackOn BLM’s Management Of Wild Horses In Nevada.
As the district court correctly held, NACO’s “argument for program-wide
changes to [BLM’s] management of wild horses” throughout Nevada was merely a
“programmatic attack” that the judiciary lacks jurisdiction to resolve under the
APA. Dist. Ct. at 6 – 8, ER 6 – 8. In Lujan the Supreme Court explained that the
APA does not allow lawsuits to “seek wholesale improvement of [an
administrative] program by court decree, rather than in the offices of the [agency]
or the halls of Congress, where programmatic improvements are normally made.”
497 U.S. at 891 (emphasis in original). Instead, under the APA, federal courts may
“intervene in the administration of the laws only when, and to the extent that, a
specific ‘final agency action’ is at issue.” Id. at 894. Thus, section 706(2) of the
APA allows courts to review particular final agency actions, but does not allow
courts to conduct a generalized review of an agency’s implementation of a broad
statutory mandate. See id. at 891 – 94. Thus, the Supreme Court made clear in
Lujan that federal courts do not have jurisdiction to review generic programmatic
challenges to an agency’s implementation of a statute, as opposed to a “particular”
final agency action. Id . Similarly, the Court confirmed in SUWA that “[t]he
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prospect of pervasive oversight by federal courts over the manner and pace of
agency compliance with [broad] congressional directives is not contemplated by
the APA.” 542 U.S. at 67. Therefore, the Supreme Court has twice held that
programmatic attacks on agencies’ implementation of congressional mandates are
simply not justiciable under the APA.
Although NACO ignored Lujan entirely in its briefing before the district
court, its opening brief to this Court made two feeble attempts to distinguish the
Supreme Court’s directly applicable holding— neither of which has any merit.
First, NACO wrongly asserted that because Lujan was before the Court on a
motion for summary judgment, its holding does not apply. Op. Br. at 34 – 35.
However, Lujan’s holding that plaintiffs must identify some “final agency action”
in order to present a justiciable claim under the APA clearly applies at either stage
of litigation. The only significance of the stage of litigation concerns the
Plaintiffs’ burden to prove their claims: while Plaintiffs must certainly prove their
allegations to survive a motion for summary judgment, that obligation does not
relieve Plaintiffs of their separate duty to plead sufficiently justiciable claims to
survive a motion to dismiss. Indeed, this Court has readily applied Lujan to affirm
motions to dismiss cases. See, e.g., ONRC Action v. Bureau of Land Management ,
150 F.3d 1132, 1136, 1140 (9th Cir. 1998) (affirming a dismissal for lack of
subject matter jurisdiction based on similarity to Lujan); Institute for Wildlife
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Protection v. Norton, 205 Fed. Appx. 483, 485 (9th Cir. 2006) (holding that based
on Lujan “the district court properly dismissed [certain claims] for lack of subject
matter jurisdiction because they are programmatic challenges not within the district
court’s or our jurisdiction”). Accordingly, NACO’s attempt to distinguish Lujan
on the basis has no merit.8
NACO made a similarly meritless attempt to confine Lujan to its holding on
standing. Op. Br. at 45 – 47. Thus, NACO has misleadingly argued that the Court
in Lujan found only that the plaintiffs there lacked standing, and that if they had
offered facts sufficient to demonstrate standing the Court would have allowed them
to bring a programmatic challenge. Id. NACO further accused the district court in
the present case of inappropriately interpreting Lujan to take “a rigid, almost
mathematical approach to the justiciability of claims,” Id. at 32 – 33; id. at 42,
(arguing that the district court inappropriately based its judgment only on the fact
that NACO made “allegations about more than one or a few improper actions”).
While Lujan did conclude that the plaintiffs in that case lacked standing,
Lujan, 497 U.S. at 882 – 89, NACO entirely ignored the relevant portion of Lujan in
8 By failing to address the issue before the district court, NACO has arguablywaived any argument on Lujan’s applicability. See Dream Palace v. County of
Maricopa, 384 F.3d 990, 1005 (9th Cir. 2003) (“Ordinarily, we decline to considerarguments raised for the first time on appeal.”). However, because AWHPC
discussed Lujan extensively before the district court, and because NACO’s attempt
to distinguish Lujan is so utterly lacking in merit, AWHPC is untroubled by theCourt considering this issue.
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which the Court also concluded that the judiciary lacks authority to review broad
programmatic challenges, id. at 890 – 94. In fact, the Supreme Court made quite
clear that “[i]t is impossible that the [standing] affidavits would suffice” to allow a
litigant to challenge an entire agency program. Id. at 890 (emphasis added). The
Court further explained that “it is at least entirely certain that the flaws in [an]
entire program . . . cannot be laid before the courts for wholesale correction under
the APA.” Id. at 893 (emphasis added). This holding, distinct from the Court’s
holding about standing, is directly applicable here. Accordingly, NACO’s attempt
to distinguish Lujan must fail, and this Court should have no trouble affirming the
district court’s decision that Lujan bars NACO’s programmatic challenge.
Indeed, here, the district court properly found that NACO’s Amended
Complaint “is no different than the programmatic challenge at issue in Lujan . . . .”
Dist. Ct. at 7, ER 7. Thus, like NACO, the plaintiffs in Lujan alleged that
“violation[s] of the law [were] rampant” in BLM’s administration of federal law.
Lujan, 497 U.S. at 891. And, also like NACO, the plaintiffs in Lujan listed
examples of allegedly rampant legal violations. Id. However, the Supreme Court
explained that federal courts may “intervene in the administration of the laws only
when, and to the extent that, a specific ‘final agency action’ is at issue.” Id. at 894
(emphasis added). Thus, the Court held that plaintiffs “cannot seek wholesale
improvement of [a] program by court decree, rather than in the offices of the
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[agency] or the halls of Congress, where programmatic improvements are normally
made.” Id. at 891 (emphasis in original).
Indeed, following Lujan, the Court of Appeals for the D.C. Circuit rejected a
programmatic challenge to BLM’s administration of the WHA for failure to
identify justiciable final agency action. Fund for Animals, Inc. v. U.S. Bureau of
Land Management , 460 F.3d 13, 18 – 19 (D.C. Cir. 2006). There, a complaint from
wild horse advocates challenged BLM’s general “policies for carrying out its wild
horse and burro management duties” through the removal of wild horses from
public lands. While noting that the plaintiff “t[ook] exception to several of the
Bureau’s policies for carrying out its wild horse and burro management duties,” the
court held that “[t]he federal courts are not authorized to review agency policy
choices in the abstract,” absent a final agency action. Id . at 18 – 22 (citing Lujan,
497 U.S. at 891, and SUWA, 542 U.S. at 71) (emphasis added).9
In each of these cases, the plaintiffs brought challenges to an agency’s
general implementation of a statute without challenging any specific final agency
action. Here too, NACO failed to identify any specific final agency action that
9 Similarly, the district court for the District of Nevada also recently rejected a
challenge to BLM’s implementation of the WHA for lack of subject matter jurisdiction because the plaintiff there also failed to identify any final agency
action. See Leigh v. Jewell , No. 3:11-cv-00608, 2014 WL 31675, at *1, 4 (D. Nev.Jan. 3, 2014) (holding that a claim alleging that BLM “conduct[ed] roundups of
excess wild horses in an inhumane manner” was not a final agency action and thus“the court lack[ed] subject matter jurisdiction”).
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harmed any of the Plaintiffs, instead challenging nearly every policy and practice
that BLM uses to implement the WHA throughout Nevada.
The fact that the Amended Complaint challenged BLM’s implementation of
the WHA throughout Nevada, and without any more specific geographic focus,
illustrates its impermissible programmatic nature. Thus, Nevada contains 85 herd
management areas, which are subject to distinct agency actions,10 with BLM
setting management objectives for HMAs in applicable Resource Management
Plans (“RMPs”) and Herd Management Area Plans (“HMAPs”). Although the
issuance of these plans constitutes final agency action, as do many site-specific
actions taken pursuant to them, NACO’s Amended Complaint did not even
mention, much less challenge, a single RMP or HMAP — even after AWHPC
detailed this problem in its original motion to dismiss. MTD 8 – 24, AISER 20 – 36.
Instead, as the district court correctly noted, “rather than identify discrete
agency actions to challenge, the [Amended Complaint] cite[d] general examples to
illustrate the need for broad judicial oversight.” Dist. Ct. at 6, ER 6. Moreover, as
explained supra, these “general examples” addressed entire categories of alleged
agency misbehavior, such as basing decisions on “political considerations and their
10 U.S. Dept. Of Interior, BLM, Herd Area and Herd Management Area StatisticsFY 2013, at 18-22, available at
http://www.blm.gov/pgdata/etc/medialib/blm/wo/Planning_and_Renewable_Resou
rces/wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.File.dat/HMA_HA%20Stats%20FY2013.pdf.
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own preferences,” Am. Compl. ¶ 79, ER 62 – 63; making improper and allegedly
“unscientific” population surveys and determinations regarding AMLs, the
presence or absence of excess horses, and whether to remove horses, id. ¶¶ 35 – 38,
41, 80, ER 44 – 47, 63; decisions to reduce or suspend grazing on public lands, id.
¶¶ 12(b), 43, ER 30 –31, 48; and the “willful failure to sell or destroy” horses,
instead sending them to long-term holding, id. ¶¶ 30, 62, ER 42 – 43, 56 – 57. As the
district court correctly noted, however, the Amended Complaint did not identify or
challenge any particular agency action, but instead provided general examples of
an ostensible need for a complete judicial overhaul of BLM’s administration of the
WHA throughout Nevada. Dist Ct. at 6 – 8, ER 6 – 8.
The district court also correctly observed that NACO’s “requested relief
further supports [its] finding that the [Amended Complaint] fail[ed] to identify
discrete agency actions . . . .” Id. at 7, ER 7. NACO “essentially ask[ed] the
[district court] to compel compliance with the [WHA] and refashion [BLM’s]
management of wild horses and burros in Nevada.” Id. Specifically, the Amended
Complaint requested that the court issue a declaratory judgment explaining what
actions the WHA requires BLM to take, issue an injunction requiring BLM to take
those actions, and maintain jurisdiction to monitor and enforce compliance with
the court’s directives. Am. Compl. ¶¶ 93 – 95, ER 67 – 68. In short, NACO invited
the district court to completely take over the management of wild horses in
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Nevada, as well as the management of wild horses in holding. However, because
federal courts are not the proper forum for such “wholesale improvement” of the
administrative state, Lujan, 497 U.S. at 891, the district court correctly declined
that invitation and dismissed NACO’s programmatic challenge under section
706(2) of the APA. Dist. Ct. at 8, ER 8.
Similarly, because “[t]he prospect of pervasive oversight by federal courts
over the manner and pace of agency compliance with [broad] congressional
directives is not contemplated by the APA,” SUWA, 542 U.S. at 67, the district
court correctly dismissed NACO’s claims under section 706(1) of the APA. Dist.
Ct. at 8, ER 8. As discussed supra and more fully below, a claim under section
706(1) may proceed “only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” SUWA, 542 U.S. at 64
(emphasis in original). A 706(1) claim may not seek a “general order[] compelling
compliance with [a] broad statutory mandate . . . .” Id. at 66 – 67. Moreover, the
Supreme Court even identified the Wild Horse Act as a paradigmatic example of
precisely the kind of “ broad statutory mandate” that cannot be compelled under the
APA. Id.11
11 NACO dismissively described SUWA’s discussion of the WHA as mere dicta.Op. Br. at 27 n.5. However, because the Court’s discussion of the WHA was
central to the “rationale upon which the Court based [its] result,” its reasoning is
clearly binding upon this Court. See Seminole Tribe of Fla. v. Florida, 517 U.S.44, 66 – 67 (1996). Moreover, even if NACO were correct, “[c]arefully considered
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The Supreme Court’s reasoning for this limitation on the APA is particularly
applicable here.
The principal purpose of the APA limitations . . . is to protect agenciesfrom undue judicial interference with their lawful discretion, and to
avoid judicial entanglement in abstract policy disagreements whichcourts lack both expertise and information to resolve. If courts were
empowered to enter general orders compelling compliance with broadstatutory mandates, they would necessarily be empowered, as well, to
determine whether compliance was achieved — which would meanthat it would ultimately become the task of the supervising court,
rather than the agency, to work out compliance with the broad
statutory mandate, injecting the judge into day-to-day agency
management.
Id. at 66 – 67 (emphasis added). Placing the judiciary in charge of federal resource
management would require judges to supplant expert agencies and spend scarce
judicial resources on day-to-day administration of statutes — precisely what NACO
asked the district court to do here.12
language of the Supreme Court, even if technically dictum, generally must be
treated as authoritative.” United States v. Oakar , 111 F.3d 146, 153 (D.C. Cir.1997); McCalla v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir.
2004) (“We do not treat considered dicta from the Supreme Court lightly.”).
12 NACO’s attempt to limit SUWA’s application by substituting NACO’s ownlanguage for that of the Supreme Court, Op. Br. at 48 – 50 (paraphrasing SUWA
“colloquially”), is unavailing. The Court clearly held that “a claim under § 706(1)
can proceed only where a plaintiff asserts that an agency failed to take a discreteagency action that it is required to take.” SUWA, 542 U.S. at 64 (emphasis in
original). It further clar ified that “[t]he limitation to discrete agency action precludes . . . broad programmatic attack[s] . . . [and] [t]he limitation to required
agency action rules out judicial direction of even discrete agency action that is notdemanded by law.” Id. at 64 – 65 (emphasis in original).
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Nevertheless, despite the Supreme Court’s pellucid explanation that “[t]he
prospect of pervasive oversight by federal courts over the manner and pace of
agency compliance with [broad] congressional directives is not contemplated by
the APA,” id . at 67 — and despite the Court expressly identifying the WHA as
featuring a broad directive the courts may not oversee, id. — NACO requested that
the district court do exactly that. Specifically, the Amended Complaint asked the
district court to enter “a judgment declaring the duties and responsibilities of
Defendants,” to issue an injunction requiring BLM to “promptly and fully comply
with all the provisions of the Act,” to “establish a schedule” for BLM’s
compliance, and to “retain jurisdiction to monitor and enforce compliance.” Am.
Compl. ¶¶ 93 – 95, ER 67 – 68. In short, NACO invited the district court to do
precisely what the Supreme Court said courts should not do under the APA, Lujan,
497 U.S. at 891 – 94; SUWA, 542 U.S. at 66 – 67 — namely, to assume responsibility
for, and to directly and intensively oversee, BLM’s management of wild horses
throughout Nevada. The district court correctly declined and dismissed NACO’s
broad, programmatic attack.
B.
The District Court Correctly Dismissed NACO’s ClaimsUnder Section 706(2) Of The APA Because NACO Failed To
Identify Any Justiciable Final Agency Action.
NACO also failed to allege any specific “final agency action” that lends
itself to judicial review under Section 706(2) of the APA. Thus, the APA defines
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the term “agency action” as “the whole or 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). Here, NACO failed to point to any such final “agency action” that has
caused the Plaintiffs any specific harm.
1. NACO’s examples do not satisfy the requirement for “a
final agency action” under § 706(2).
Although the Amended Complaint offered examples of agency actions that
allegedly support NACO’s claim of rampant violations of the WHA, such
examples do not render NACO’s broad, programmatic attack justiciable. Indeed,
the Supreme Court in Lujan was “entirely certain that the flaws in the entire
‘program’— consisting principally of the many individual actions referenced in the
complaint, and presumably actions yet to be taken as well — cannot be laid before
the courts for wholesale correction under the APA . . . .” 497 U.S. at 893
(emphasis added). Similarly, this Court has held that “the mere fact that a plaintiff
has identified site-specific [actions] in its pleadings does not permit a
programmatic challenge.” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1196
(9th Cir. 2011); see also Sierra Club v. Peterson, 228 F.3d 559, 567 (5th Cir. 2000)
(en banc) (finding that even “identif[ying] specific allegedly improper final agency
actions within [a] program” does not render a programmatic challenge justiciable)
(emphasis added). Thus, it is well settled that a programmatic challenge does not
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become justiciable merely because a pleading contains examples of allegedly
unlawful agency actions.13
In any event, the district court correctly found that none of the examples in
the Amended Complaint actually constitutes final agency action. As discussed
supra, the APA allows federal courts to review only “final agency action.” Lujan,
497 U.S. at 882; San Luis Unit Food Producers v. United States, 709 F.3d 798, 801
(9th Cir. 2013), cert. denied , 134 S. Ct. 439 (2013). However, many of NACO’s
allegations are untethered to any “agency action” at all. E.g. Am. Compl. ¶¶ 51,
59, ER 51 – 52, 55 – 56 (challenging BLM’s statements on its website that it does not
slaughter horses and BLM’s attempts to control wild horse populations without
removing them from the range); see also Op. Br. at 24 (citing a BLM website to
argue that the agency admits it sends horses to holding facilities, that numerous
horses are above AML on the range, and that BLM has promised to improve its
methods for counting horses).
13 NACO’s Amended Complaint made quite clear that it listed various actions as
examples of BLM’s allegedly unlawful management of wild horses throughout
Nevada. See Am. Compl. ¶ 12(a), ER 29 – 30 (listing “example[s]” to “document . .
. problems and failure to manage the animals as required by the Act”), id. ¶ 29, ER41 – 42 (listing “example[s]” of statutory duties that BLM allegedly “ignore[s] in
practice”); id. ¶ 46, ER 50 (offering BLM’s order to remove livestock from onearea “[a]s just one example” of “BLM . . . violating multiple use principles”); id. ¶
51, ER 51 – 52 (offering BLM’s statement on its website that it does not slaughter
horses as an “example” of the agency’s “failing to comply with congressionalmandates”).
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Further, those allegations in the Amended Complaint that do relate to some
type of agency action fail to identify any final agency action that is justiciable
under the APA. First, despite complaining generally of BLM’s failure to set
AMLs “properly” or scientifically, Am. Compl. ¶¶ 40 – 41, ER 46 – 47, NACO never
identifies or objects to a single AML determination, nor explains how any AML
determination has allegedly harmed any of the Plaintiffs in this case. Likewise,
allegations about BLM’s allegedly unscientific and unlawful methods for
establishing AMLs, making excess determinations, or determining what constitutes
a “thriving natural ecological balance” are not justiciable because they are not
tethered to any specific final agency action that allegedly harmed any of the
Plaintiffs. While the RMPs or HMAPs that BLM uses to establish AMLs may
themselves constitute final agency actions, the Amended Complaint failed to
identify a single such decision anywhere in its 57 pages.
Similarly, the Amended Complaint’s challenge to “the methodologies
employed” by BLM when making excess determinations failed to state a
justiciable claim because the Amended Complaint failed to identify even one
allegedly unlawful excess determination that harmed any Plaintiff. E.g. Am.
Compl. ¶ 80.14
14 NACO’s cursory argument that the Amended Complaint “did identify
determinations that AMLs had been exceeded, and [instances in which BLM] hadfailed to remove excess animals,” Op. Br. at 7, cannot withstand scrutiny. The
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NACO’s argument that BLM unscientifically determines what constitutes a
“thriving natural balance,” id., not only misquotes the statute (which mandates a
“thriving natural ecological balance,” 16 U.S.C. § 1333(a)) but also ignores the
fact that the Supreme Court has found that the judiciary cannot compel BLM to
comply with this particular “broad statutory mandate[].” SUWA, 542 U.S. at 66 –
67; see also Fund for Animals, 460 F.3d at 21. Moreover, the Amended Complaint
does not identify any particular action that BLM took that allegedly failed to
achieve this broad statutory goal.
Equally unavailing is NACO’s challenge to BLM’s maintenance in long-
term storage of wild horses removed from various western states. E.g., Am.
Compl. ¶ 3, ER 17 (alleging “illegal and improper . . . stockpiling of horses and
burros in holding areas”). NACO did not — and could not —challenge BLM’s
decades-old decision to utilize long-term and short-term holding facilities for wild
horses removed from public lands, because the six-year statute of limitations for
such a challenge has long since expired. See 28 U.S.C. § 2401(a) (establishing six-
Amended Complaint never described even one actual excess determination, which
(as explained above) is a statutory prerequisite to removal of excess horses. 16
U.S.C. § 1333(b)(2); see also Am. Compl. ¶ 12(a)(iv), ER 30 (describing a letterfrom BLM but no excess determination); id. ¶ 12(b), ER 30 – 31 (describing a
request to remove horses but no excess determination); id. ¶33, ER 43 (stating that
BLM “on occasion” failed to remove horses from private lands but identifyingonly one case from 1986); id. ¶ 43, ER 43 (describing a report by the Office of the
Inspector General); id. ¶ 46, ER 50 (describing a failure to remove horses but noexcess determination); id. ¶ 71, ER 60 (noting that horses were removed).
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year statute of limitations for APA claims); S. Rep. No. 101-534, at 1 (1990)
(Congress expressing continued support for holding facilities “as a method of
removing unadopted wild horses and burros”). Moreover, the Amended Complaint
did not identify or challenge a single individual roundup that sent horses to a
holding facility. 15
Similarly, NACO failed to identify any justiciable final agency action by
alleging that BLM unlawfully refuses to remove excess wild horses from public
lands while requiring ranchers and other users to reduce or cease their use of public
lands. E.g., Am. Compl. ¶ 94(f), ER 68 (asking the district court to order BLM to
“cease favoring horses and burros, particularly excess animals, over . . . ranchers”).
As explained supra, to “close appropriate areas of the public lands to grazing use”
when “necessary to provide habitat for wild horses or burros,” BLM must issue a
formal “Notice of Closure.” 43 C.F.R. § 4710.5. However, the Amended
Complaint did not identify any such notice of closure, nor did it allege that BLM
violated its regulations by failing to issue a notice of closure when demanding that
ranchers cease grazing in certain areas. Indeed, the Amended Complaint never
15 NACO has also wholly failed to allege that BLM’s long-term holding of wild
horses causes any concrete or particularized injury to any Plaintiff. NACO doesstate that long-term holding occurs “at considerable public expense,” Op. Br. at 16,
but fails to explain how general BLM expenditures could harm any of the
Plaintiffs. Accordingly, NACO has failed to allege standing to bring this claim.See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 – 61 (1992).
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even mentioned the term “notice of closure”— all of which was also explained in
AWHPC’s May 29, 2014 motion to dismiss. MTD 13 – 18, AISER 25 – 30.
Instead, the Amended Complaint identified BLM’s “demand[] that all
livestock be removed from specified allotments in an area known as the Diamond
Complex in Nevada” as “just one example” of BLM’s alleged violation of
multiple-use principles. Am. Compl. ¶ 46, ER 50. NACO’s opening brief
similarly asserted that “reducing Crawford’s AUMs” and ordering the removal of
cattle from certain public lands constituted final agency action. Op. Br. at 53.
However, the Amended Complaint did not identify these “demand[s]” as any
particular type of agency action, much less allege that they are justiciable final
agency actions. Nor, importantly, did the Amended Complaint seek any relief
regarding these demands. See Am. Compl. ¶¶ 93 – 95, ER 67 – 68. Thus, the
Amended Complaint failed to identify any final agency action regarding closure of
public lands to grazing. See also Fund for Animals v. U.S. Bureau of Land
Management , 357 F. Supp. 2d 225, 229 n.6 (D.D.C. 2004), aff’d 460 F.3d 13 (D.C.
Cir. 2006) (noting that the failure to request relief from a particular action suggests
that a complaint is merely using that action as an example of an agency’s
implementation of a program).
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2.
NACO cannot rely on a “future evidentiary” proceeding
to satisfy the requirements of § 706(2).
NACO has now conceded to this Court that its Amended Complaint did not
identify final agency actions, asserting that such actions “would most appropriately
be specified as part of a[ future] evidentiary showing.” Op. Br. at 15. For
example, NACO conceded that “[t]he [Amended Complaint] did not describe each
and every AML, but instead planned [] to provide that information upon an
evidentiary showing.” Id. at 18 – 19. N