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Nevada Association of Counties v. United States Department of The Interior

United States District Court, D. Nevada

March 12, 2015

NEVADA ASSOCIATION OF COUNTIES, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

ORDER (Def.-Intervenors' Motion to Dismiss - dkt. no. 38; Defs.' Motion to Dismiss - dkt. no. 43; Def.-Intervenor's Motion to Dismiss - dkt. no. 56)

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court is a Motion to Dismiss (dkt. no. 43) filed by Defendants United States Department of the Interior, Sally Jewell, the Bureau of Land Management ("BLM"), Neil Kornze, Edwin Roberson, and Amy Leuders (collectively, "Federal Defendants"). Also before the Court are Motions to Dismiss filed by Defendant-Intervenors American Wild Horse Preservation Campaign, Terri Farley, and Mark Terrell (collectively, the "Campaign") (dkt. no. 38) and Defendant-Intervenor Laura Leigh (dkt. no. 56). The Court has reviewed Plaintiffs Nevada Association of Counties, Nevada Farm Bureau Federation, Nevada Bighorns Unlimited, and Crawford Cattle's opposition brief (dkt. no. 59) and Federal Defendants' and the Campaign's replies (dkt. nos. 60, 62).[1] Because the Court grants the Campaign's Motion to Dismiss (dkt. no. 38), Federal Defendants' and Leigh's Motions are denied as moot.[2]

II. BACKGROUND

Plaintiffs represent Nevada's counties; farmers and ranchers; and hunters, outdoorsmen, and conservationists. (Dkt. no. 53 ¶¶ 9-12.) They allege that Federal Defendants have failed to manage Nevada's wild horses and burros in compliance with the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act"), 16 U.S.C. §§ 1331-1340, adversely affecting the state's natural resources, economic vitality, public safety, public services, and wild horse and burro populations. ( See dkt. no. 53 ¶¶ 60-72.)

Almost half of the United States' wild horse and burro population is in Nevada. ( Id. ¶ 44.) The state's wild horse and burro population grows quickly - without intervention, herd sizes will grow by about 20% annually. ( Id. ¶ 59.) Plaintiffs allege that such unchecked herd growth strains Nevada's natural and economic resources because horses and burros aggressively compete with livestock and other wildlife for water and forage. ( Id. ¶¶ 64, 67-68.) Horses and burros may also impair public safety by causing traffic accidents. ( Id. ¶¶ 65-66.)

Plaintiffs initiated this action in December 2013, alleging that Federal Defendants have improperly managed Nevada's wild horses and burros in violation of the Wild Horse Act and Plaintiffs' Fifth Amendment right to due process, and seeking judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. (Dkt. no. 1 at 42-48.) Plaintiffs sought declarative and injunctive relief. ( Id. at 48-50.) Plaintiffs filed a First Amended Complaint ("FAC") as a matter of course in June 2014 ( see dkt. nos. 42, 51, 53), after the Campaign filed its Motion to Dismiss (dkt. no. 38).[3] The FAC similarly seeks declarative and injunctive relief in light of Federal Defendants' alleged APA and constitutional violations. (Dkt. no. 53 at 49-57.)

Federal Defendants and Defendant-Intervenors (together, "Defendants") contend that the FAC must be dismissed because Plaintiffs have failed to identify a final agency action that is subject to judicial review. Defendant-Intervenors seek dismissal under Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction in the absence of an agency action to review (dkt. no. 44-2 at 14-15; dkt. no. 56 at 15-16); Federal Defendants rely on Rule 12(b)(6) in contending that Plaintiffs' claims are not justiciable because they amount to a programmatic challenge to Federal Defendants' implementation of the Wild Horse Act in Nevada.[4] (Dkt. no. 43 at 11-17.)

III. LEGAL STANDARD

The Wild Horse Act tasks the Secretary of the Interior ("Secretary") with "protect[ing] and manag[ing] wild free-roaming horses and burros as components of the public lands, " among other duties. 16 U.S.C. § 1333(a). The Act does not, however, create a private right of action for claims challenging agency compliance with the statute. See In Def. of Animals v. U.S. Dep't of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014) (the Act does not "contain an internal standard of judicial review").

The APA provides for judicial review of agency actions. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990); see 5 U.S.C. §§ 702, 704. Under the APA, an agency action "includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent denial thereof, or failure to act." 5 U.S.C. § 551(13); see Lujan, 497 U.S. at 882. Plaintiffs thus bring their claims under the APA, seeking to "compel agency action unlawfully withheld or unreasonably delayed" under § 706(1), and to set aside an agency action pursuant to § 706(2). (Dkt. no. 53 ¶ 77.) "When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the agency action' in question must be final agency action.'" Lujan, 497 U.S. at 882 (citing 5 U.S.C. § 704); see Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006). Final agency action is a jurisdictional prerequisite to judicial review. Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008).

IV. DISCUSSION

Plaintiffs' claims challenge the Secretary's management of wild horses and burros under the Wild Horse Act. To facilitate the protection and management of wild horses and burros, the Act requires the Secretary to "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). The inventory is designed to assist the Secretary in determining whether those lands are overpopulated, in creating Appropriate Management Levels ("AMLs") for those lands, and in deciding whether wild horses and burros should be removed from overpopulated areas, or whether other actions should be taken to achieve the AMLs. Id. The Act also lays out a process the Secretary must follow to "immediately remove excess animals" from public lands. 16 U.S.C. § 1333(b)(2). The Secretary may take those actions only where she determines "that an overpopulation exists on a given area of the public lands and that ...


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