Beaver County Utah v. United States Department of The Interior et al

MOTION to Dismiss for Lack of Jurisdiction and Memorandum in Support

D. UtahMay 3, 2017

JOHN W. HUBER, United States Attorney (#7226) JARED C. BENNETT, Assistant United States Attorney (#9097) 111 South Main Street, #1800 Salt Lake City, Utah 84111 Telephone: (801) 524-5682 Attorneys for the United States of America ──────────────────────────────────────────────────────────────── IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH CENTRAL DIVISION ──────────────────────────────────────────────────────────────── BEAVER COUNTY, a Utah political subdivision, Plaintiff, vs. UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, Secretary of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; MICHAEL NEDD, Acting Director of the Bureau of Land Management; EDWIN L. ROBERSON, State Director of the Bureau of Land Management Utah; and Does 1-10; Defendants. Case No. 2:17-CV-88-CW MOTION TO DISMISS Honorable Clark Waddoups ──────────────────────────────────────────────────────────────── Under Fed. R. Civ. P. 12(b)(1), the United States Department of the Interior; Secretary of the Interior Ryan Zinke (“the Secretary”); the Bureau of Land Management (“BLM”); Acting BLM Director, Michael Nedd; and BLM State Director Edwin L. Roberson (collectively “the Federal Defendants”), through the undersigned Assistant United States Attorney, move to dismiss this action because this Court lacks subject matter jurisdiction. Specifically, Beaver County (“the County”) lacks standing under Article III, and the United States has not waived its Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 1 of 25 2 sovereign immunity. Thus, this action should be dismissed with prejudice. BACKGROUND I. STATUTORY BACKGROUND A. Wild, Free-Roaming Horses and Burros Act In December1971, Congress enacted the Wild Free-Roaming Horses and Burros Act, (“WHBA”), 16. U.S.C. § § 1331 to 1339 (2012), and declared “that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West,” that they contributed to the “diversity of lifeforms within the Nation . . . and that these horses and burros are fast disappearing from the American scene.” 16 U.S.C. § 1331. Given these findings, Congress stated that the policy of the United States was to protect these animals from “capture, branding, harassment, or death” because they are “an integral part of the natural system of public lands.” Id. To give effect to its policy, Congress required the Secretary to “maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Id. § 1333(b)(1). This inventory assists the Secretary to set “Appropriate Management Levels” (“AML”) of wild horses and burros and to “determine whether [AML] should be achieved by removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” Id. Where the Secretary determines that: (1) “an overpopulation of wild horses and/or burros exists on a given area of the public lands”; and (2) “that action is necessary to remove excess animals,” Congress requires the Secretary to “immediately remove excess animals from the range so as to achieve appropriate management Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 2 of 25 3 levels.” Id. § 1333(b)(2); Wyoming v. U.S. Dep’t of the Interior, 839 F.3d 938, 944 (10th Cir. 2016) (“[A] determination that an overpopulation exists in a given HMA is not sufficient, standing alone, to trigger any duty on the part of the BLM. Instead, the BLM must also determine that action is necessary to remove excess animals”). Congress further provided that “[s]uch action shall be taken . . . until all excess animals have been removed so as to restore a thriving natural ecological balance to the range . . . .” Id. (emphasis added). B. The Federal Land Policy and Management Act Nearly five years after enacting the WHBA, Congress enacted the Federal Land Policy and Management Act (“FLPMA”). 43 U.S.C. § § 1701 to 1784. In FLPMA, Congress required BLM to develop land use plans to govern the types of activities that may occur on the federal public lands within BLM’s jurisdiction. 43 U.S.C. § 1712(a). Land use plans require BLM to follow principles of multiple use and sustained yield. 43 U.S.C. § 1712(c). Land use plans developed or in development before 1979 were called “Management Framework Plans” (“MFP”). 43 C.F.R. § 1601.8 (1979). Land use plans developed after 1979 are called “Resource Management Plans” (“RMP”). Id. Under the multiple-use standard, a land use plan may take into consideration wild-horse and burro management activities, including the creation of herd management areas (“HMA”), within the land area subject to the plan. 43 C.F.R. § 4710.1 (2016). HMAs are “established for the maintenance of wild horse and burro herds.” Id. § 4710.3-1. Management of the HMAs “shall be at the minimum level necessary to attain the objectives identified in approved land use plans and herd management area plans.” Id. § 4710.4. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 3 of 25 4 II. FACTUAL BACKGROUND A. The Land Use Plans for the Sulphur HMA The Sulphur HMA consists of approximately 265,675 acres, is located approximately 50 miles from Minersville, Utah, and contains parts of Iron, Beaver, and Millard counties.1 In 1983, BLM completed the Pinyon MFP, which is the relevant land use plan for a portion of the Sulphur HMA. Among other decisions in the Pinyon MFP, BLM established AML for the Sulphur HMA at 135 to 180 wild horses. Pinyon MFP at 109 of 281. In 1987, BLM completed the Warm Springs RMP. Warm Springs RMP at 43 of 117. The Warm Springs RMP set AML between 35 and 75 in the northern portion of the Sulphur HMA. Warm Springs RMP at 43 of 117. In total, the Pinyon MFP and the Warm Springs RMP established AML between 170 and 255 horses for the Sulphur HMA. B. Wild Horse Management Decisions On May 13, 2016, BLM issued an Environmental Assessment (“EA”) under the National Environmental Policy Act, 42 U.S.C. § § 4321 to 4347, in which it analyzed the environmental impacts of three alternative wild-horse management actions within the Sulphur HMA. First, BLM considered the impacts of gathering and removing wild horses that exceed AML from the Sulphur HMA over a six to ten-year period in addition to treating some horses with a contraceptive vaccine to suppress population growth. Vaccinated horses would be released back into the HMA. Second, BLM analyzed whether to gather and remove excess horses over a 1 https://eplanning.blm.gov/epl-front-office/projects/nepa/51689/73980/81329/DOI-BLM-UT- C010-2015-0011-EA.pdf at 4 of 158. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 4 of 25 5 six to ten-year period without applying any population suppression treatments. Finally, BLM studied a no-action alternative, which would maintain the status quo. EA at 27, 12 of 158. In addition to environmental impacts, BLM also analyzed whether these three alternatives complied with the Pinyon MFP and the Warm Springs RMP. EA at 23 of 158. The County, among many others, provided comments on a draft version of the EA’s analysis to which BLM responded in its May 13, 2016 “final” EA. EA at 132 of 158. However, no entity, including the County, commented that BLM had an obligation to immediately reduce horse populations to AML or that BLM had an obligation to reach AML in a shorter period than six to ten years. EA at 132 to 158. In fact, instead of objecting to BLM’s proposed gather plan, how many gathers would occur, the time over which the gathers would occur, or the use of population growth suppression treatments, the County’s comment letter said, “Beaver County is fully in support of Alternative 1 in the EA, to remove excess wild horses to AML numbers and then implement population growth suppression.” Exhibit A. Along with the final EA, BLM also issued its Decision Record and Finding of No Significant Impact (“DR/FONSI” or “Gather Plan”) in which BLM chose to implement Alternative 1 in the EA. DR/FONSI at 4 of 158. Specifically, BLM found that an overpopulation of horses existed in the Sulphur HMA and that approximately two to four gathers over a period of six to ten years along with population growth suppression treatments would achieve and maintain AML. DR/FONSI at 4 of 158. Additionally, BLM determined to build a 17.5-mile long fence along Highway 21 to protect motorists and horses from colliding. DR/FONSI at 4 of 158. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 5 of 25 6 On February 6, 2017, the County filed this lawsuit against the Gather Plan alleging five causes of action. ECF No. 2. As a threshold matter, the County claims to have standing to bring this action because: (1) wild horses are going to suffer and die due to overpopulation; (2) wild horse overgrazing will hurt the County’s agricultural industry and, consequently, its tax base; (3) County citizens, who are federal grazing permittees, are suffering forage reductions by the wild horse population; and (4) wild horses create a safety hazard for motorists on Highway 21. ECF No. 2, ¶ ¶ 59-67, 73-74, 83-84, 93-94. The County’s first cause of action alleges that BLM is in violation of the Pinyon MFP and the Warm Springs RMP because the wild horse populations exceed the limits in the land use plans. ECF No. 2 at 15-16. The County’s second cause of action asserts that BLM has violated the WHBA by not “immediately” reducing wild horse numbers to AML and, instead, deciding to achieve AML over six to ten years. ECF No. 2 at 16-18. The County’s third cause of action claims that by gathering less than the number of horses necessary to achieve AML and by returning some horses from the gather after being treated with population-suppression vaccines, the Gather Plan will not achieve AML and, therefore, is arbitrary and capricious. ECF No. 2 at 18-19. The County’s fourth and fifth “causes of action” do not plead any violation of law but merely request mandamus and injunctive relief respectively. ECF No. 2 at 19-21. Consequently, if the County’s first three causes of action fail, its fourth and fifth causes of action necessarily do too. As shown below, the County’s first three causes of action fail because the County: (1) lacks standing to bring any of its claims; and (2) fails invoke the waiver of sovereign immunity under the Administrative Procedure Act (“APA”), 5 U.S.C. § § 701-706. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 6 of 25 7 STANDARD OF REVIEW Under Fed. R. Civ. P. 12(b)(1), this Court should “presume no jurisdiction exists,” United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548, 551 (10th Cir. 1992), and the burden of establishing subject matter jurisdiction “rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). To establish jurisdiction, Plaintiffs “must ‘allege in [their] pleading the facts essential to show jurisdiction,’ and ‘must support [those facts] by competent proof.’” Koch Indus., 971 F.2d at 551. “‘Where [as here] a party attacks the factual basis for subject matter jurisdiction, the court does not presume the truthfulness of factual allegations in the complaint.’” La Resolana Architects, P.A. v. Clay Realtors Angel Fire, 416 F.3d 1195, 1198 (10th Cir. 2005) (citation omitted). Instead, courts have “wide discretion to allow . . . other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). ARGUMENT I. THE COUNTY LACKS STANDING TO BRING ALL OF ITS CLAIMS BECAUSE IT HAS NOT SUFFERED AN INJURY IN FACT THAT IS FAIRLY TRACEABLE TO BLM’S ACTIONS This Court should dismiss this action because the County has failed to establish standing under Article III of the United States Constitution. “The doctrine of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.” Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447 (10th Cir. 1996) (citation and quotations omitted). “The gist of the question of standing is whether the party seeking relief has alleged such a personal Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 7 of 25 8 stake in the outcome of the controversy as to assure . . . concrete adverseness . . . .” United States v. Richardson, 418 U.S. 166, 173 (1974) (emphasis added, citations and quotations omitted). To establish this “personal stake” under Article III, the County must show, among other things, that: (1) “[it has] personally suffered an injury in fact; [and] (2) the injury is fairly traceable to the challenged action of the defendant . . . .” Mount Evans Co. v. Madigan, 14 F.3d 1444, 1450 (10th Cir. 1994). To carry its burden to prove the first element of standing, the County must show a “distinct and palpable injury to itself,” Wyoming v. Lujan, 969 F.2d 877, 882 (10th Cir. 1992), arising from “an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or hypothetical.” Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir. 2002) (quotations and citations omitted). To establish the second element of standing, the County must show that the alleged injury is ‘“fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] independent action of some third party not before the court.” Wyoming, 969 F.2d at 880 (citations omitted, alternations in original). In short, the County must prove “a substantial likelihood that the defendant’s conduct caused plaintiff’s injury in fact.” Nova Health Sys. v. Gandy, 416 F.3d 1149, (10th Cir. 2005). As shown in order below, the County: (1) fails to establish an injury relating to its purported interest in wild horse health; (2) cannot assert an injury to itself based on alleged harms to grazing permittees or drivers on Highway 21; and (3) fails to establish a non- speculative injury to its tax base that is fairly traceable to BLM. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 8 of 25 9 A. The County Does Not Have a Legally Protected Interest in Wild Horse Health The County cannot establish an injury based on its purported interest in a healthy wild horse population. Congress enacted the WHBA “to protect ‘all unbranded and unclaimed horses and burros on public lands of the United States.’” Kleppe v. New Mexico, 425 U.S. 529, 531 (1976) (emphasis added) (quoting 16 U.S.C. § 1332(b)). In fact, the WHBA “provides that all such horses and burros on the public lands administered by the Secretary of the Interior through the [BLM] or by the Secretary of Agriculture through the Forest Service are committed to the jurisdiction of the respective Secretaries . . . .” Id. The United States’ interest in protecting wild horses and burros is exclusive because, under the WHBA, even if protected horses “stray from public lands onto privately owned land, the owners of such land” may not rely on self-help but must work through the United States to remove the horses from their land. Id.at 532 (quoting 16 U.S.C. § 1334). The only way that state and local governments may manage wild horses is through a cooperative agreement with the United States. Id. (citing 16 U.S.C. § 1336). Given the exclusive federal jurisdiction over wild horses, the United States Supreme Court precluded New Mexico’s attempt to manage wild horse herds within its borders under its estray laws. Id. at 534-35. Likewise, the County has no legally cognizable interest in managing horse health and, accordingly, fails to prove an injury. To the extent the County attempts to salvage its claim of injury by arguing that it has an interest in the general welfare of wild horses within its borders, the County’s argument fails. The Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 9 of 25 10 application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large . . . .” lacks standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992). Consequently, “[t]o establish an injury in fact, the plaintiff must show ‘a distinct and palpable injury to itself.’ An abstract injury is not enough . . . .” Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir. 1992) (citations omitted). The County’s concern that wild horses are unhealthy, are fighting with one another for resources, or may die due to a lack of resources is a concern that every member of the general public shares; and the County has cannot show how unhealthy wild horses harm the County in a way that is different from the public at large. Accordingly, the County cannot show an injury to itself based on the health of federally-managed wild horses. B. The County Cannot Assert an Injury to Itself Based on Alleged Harms to Motorists on Highway 21 or to Federal Grazing Permittees The County cannot claim an injury based on alleged harm to either motorists who drive Highway 21 or to federal grazing permittees because the County may not assert a parens patriae claim against the Federal Defendants. “At common law, the concept of parens patriae invested the English Sovereign with powers and duties . . . to protect certain interests of his subjects. In this country, the parens patriae function expanded somewhat and devolved upon states that, to some extent, ceded it to the federal government.” In re Multidistrict Vehicle Air Pollution M.D.I. No. 31 v. Auto Mfg. Ass’n, Inc., 481 F.2d 122, 131 (9th Cir. 1973). Generally, ‘“[a] State does not have standing as parens patriae to bring an action against the Federal Government.” Wyoming v. Lujan, 969 F.2d 877, 883 (10th Cir. 1992) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 610 n.16 (1982)). This long-standing rule exists Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 10 of 25 11 “because the federal government is presumed to represent the citizens’ interests.” Wyoming v. Dep’t of the Interior, 674 F.3d 1222, 1232 (10th Cir. 2012). Thus, the County may only sue to the extent that the federal action adversely affects the County’s own proprietary interests. In re Multidistrict, 481 F.2d at 131.2 Claiming an injury based on an interest of grazing permittees or drivers on Highway 21 is precisely the type of parens patriae claim that the County cannot assert against the United States. First, a local government’s “asserted interest in the jobs of their citizens implicates standing pursuant to parens patriae, which, as the parties agree, is not available when a state sues the federal government . . . .” Wyoming, 674 F.3d at 1232. Indeed, asserting the rights of farmers and ranchers cannot be a basis for the County to have standing in its suit against the Federal Defendants. Second, parens patriae also precludes the County from asserting an injury on behalf of motorists who drive on Highway 21 because the United States represents those drivers. Madigan, 14 F.3d at 1453 n.3 (finding that the county lacked standing to sue the federal government under parens patriae “because the federal government is presumed to represent the [c]ounty’s citizens”); Karst Envtl. Educ. & Prot., Inc. v. Fed. Highway Admin., 2011 WL 1434608, *6 (W.D. Ken. April 14, 2011) (unpublished) (holding that county’s interest in safety of its drivers was barred in suit against the federal government under parens patriae). 2 The parens patriae prohibition applies to counties. Id. (invoking parens patriae doctrine when county was a party); Madigan, 14 F.3d at 1453 n.3 (finding that parens patriae doctrine precluded county from brining claim against the federal government on behalf of the county’s citizens). Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 11 of 25 12 Therefore, harm to local ranchers and motorists is not an interest on which the County can base an injury for purposes of standing in this action against the Federal Defendants.3 C. The County Cannot Establish a Non-Speculative Injury to Its Tax Base That is Fairly Traceable to BLM The County cannot establish a non-speculative injury-in-fact that is fairly traceable to BLM’s action. Courts look with askance at assertions of tax-base harm from federal decisions because “the unavoidable economic repercussions of virtually all federal policies, and the nature of the federal union as embodying a division of national and state powers, suggest to us that impairment of state tax revenues should not, in general be recognized as sufficient injury to support state standing.” Iowa v. Block, 771 F.2d 347, 354 (8th Cir. 1985) (quoting Pennsylvania v. Kleppe, 553 F.2d 668, 672 (D.C. Cir. 1976)); see also Region 8 Forest Serv. Timber Council v. Alcock, 993 F.2d 800, 809 (11th Cir. 1993) (finding that allegations of “(1) layoffs and income reductions; (2) a decreasing tax base; and (3) a loss of public services” are too attenuated from the federal decision to confer standing). Although the Court of Appeals for the Tenth Circuit has not “foreclose[d] the argument that reduced tax revenues can provide a state with Article III standing,” it requires that the County “show a fairly direct link between the state’s status as a . . . recipient of revenues and the legislative or administrative action being 3 In addition to lacking standing under Article III because of parens patriae, the County’s assertion of ranchers’ and motorists’ interests, instead of its own, fails to meet prudential standing requirements. “[T]he term ‘standing’ subsumes a blend of constitutional requirements and prudential considerations.” Madigan, 14 F.3d at 1450 (citations and quotations omitted). “Beyond the constitutional requirements, a plaintiff must also satisfy . . . prudential principles,” which, among other things, require the County to assert its own rights instead of those of a third party. Id. The County cannot rely on third parties as a basis to assert an injury to itself. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 12 of 25 13 challenged.” Wyoming, 674 F.3d at 1234 (citations and quotations omitted). By illustration, in Stewart v. Norton, Kane and Garfield Counties sought judicial review of BLM’s decision to issue grazing permits to a conservation group that said it would not fully utilize the forage on its federal grazing allotments. 2006 WL 3305409, *1. The counties claimed that they would suffer harm to their tax base if grazing was not fully utilized on the federal grazing allotments. Id. at *4. In fact, the counties submitted affidavits from two county commissioners that were based, in part, on an economic study of grazing within their counties and purportedly showed that BLM’s decision “will reduce property values by approximately three-quarters of a million dollars and will cost the [c]ounties nearly $170,000.00 in annual sales revenue.” Id. and n.1. The district court rejected the counties’ assertion of an injury because the counties’ alleged harm to its tax base was too speculative and not fairly traceable to BLM. Id. at *6. On appeal, the counties argued that BLM’s grant of grazing permits to the conservation group would cause the counties to “suffer financially from a decline in the range-fed cattle industry and that the BLM’s issuance of grazing permits to [the conservation group] ‘effectively eliminate[s] livestock grazing’ in the area.” Stewart v. Kempthorne, 554 F.3d 1245, 1254 (10th Cir. 2009). The counties added that this “decrease in livestock grazing decreases the tax revenues generated through sales and property taxes, thus injuring the [c]ounties.” Id. Despite the evidence that the counties had presented, the Tenth Circuit found the argument that a loss of grazing forage results in a loss of tax revenue was “merely conjectural” and failed to “demonstrate[] any direct link between decreased tax revenues” and BLM’s action. Id. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 13 of 25 14 Conversely, the Tenth Circuit’s decision in Madigan provides an example of when harm to a county’s tax base is sufficiently direct for standing purposes. In Madigan, a county and a private vendor sued under the APA challenging the Forest Service’s decision not to rebuild a concession facility that had burned down during a forest fire. 14 F.3d at 1448. Prior to the fire, the Forest Service directly paid to the county 25% of the revenues that the Forest Service made from the concession facility in addition to allowing the county to collect sales tax from items sold there. Id. at 1451. The county claimed an injury based on its lost payments and sales-tax revenues from the Forest Service’s decision not to rebuild the concessions facility. Id. at 1448. Based on these lost direct payments from the Forest Service and the clear connection with lost sales-tax revenue, the Tenth Circuit found that the county had suffered an injury that was fairly traceable to the challenged government decision. Id. at 1551. In this action, the County’s arguments of injury are analogous to those in Stewart rather than to those in Madigan. Similar to Stewart, the County claims that a reduction in cattle grazing due to the excess wild horses eating the available forage, especially during drought conditions, adversely affects its tax base. This argument requires a significant amount of mental gymnastics and generous assumptions to connect the amount of grass a wild horse eats with the amount of revenue the County loses in taxes. Such a claim “is conjecture based on speculation that is bottomed on surmise.” Wyoming, 969 F.2d at 882. Moreover, unlike Madigan, the County is unable to allege, much less show, that wild horse overpopulation deprives it from either receiving direct payment from the United States or directly taxing the cattle-grazed forage in a grazing allotment. Therefore, the County cannot establish a concrete, Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 14 of 25 15 non-speculative injury to its tax base, or any other proprietary interest, that is fairly traceable to the Federal Defendants. Accordingly, this action should be dismissed for want of standing. II. THE COUNTY HAS FALED TO INOVKE A WAIVER OF SOVEREIGN IMMUNITY UNDER THE APA. Even assuming arguendo that the County has standing under Article III, this Court should still dismiss this action because the County fails to invoke a waiver of sovereign immunity under the APA. As a general rule, “‘the United States, as sovereign, is immune from suit save as it consents to be sued.’” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). The United States’ consent to be sued is “a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). In order for the United States to waive this sovereign immunity, the waiver “‘cannot be implied but must be unequivocally expressed.’” Id. (quoting United States v. King, 395 U.S. 1, 4 (1969)). The County bears the burden of establishing a waiver of sovereign immunity under the APA. Id. As shown below, the County is unable to carry its burden to establish a waiver of sovereign immunity under the APA because: (1) it failed to exhaust its administrative remedies and, therefore, waived its claims here; and (2) BLM does not have a mandatory, non-discretionary duty to reduce the excess wild-horse population to desired levels in one immediate action. A. The County Waived Its Claims By Failing to Exhaust Its Administrative Remedies. The County waived its claims in this action by failing to raise them before BLM during the administrative process. In fact, the County actually told BLM that it supported the very action that it now challenges here, which waives their claims under the APA and under the Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 15 of 25 16 Federal Rules of Appellate Procedure. [The United States Supreme Court has] recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by courts. United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 36-37 (1952). Consequently, “[i]t is a well-known axiom of administrative law that ‘if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum.’” Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004); see also Unemployment Comp. Comm’n v. Aragan, 329 U.S. 143, 155 (1946) (“The responsibility of applying the statutory provisions to the facts of the particular case was given in the first instance to the Commission. A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.”); Kleissler v. U.S. Forest Serv., 183 F.3d 196, 202 (3rd Cir. 1999) (“[W]e hold that the claims raised at the administrative appeal and in the federal complaint must be so similar that the district court can ascertain that the agency was on notice of, and had an opportunity to consider and decide, the same claims now raised in federal court.”); N.M. Envtl. Improvement Div. v. Thomas, 789 F.2d 825, 835 (10th Cir. 1986) (holding that an issue was waived because not raised before the agency); Wilson v. Hodel, 758 F.2d 1369, 1372 (10th Cir. 1985) (“Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but erred against objection made at the time Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 16 of 25 17 appropriate under its practice.”). “Generalized objections to agency action . . . will not do. ‘An objection must be made with sufficient specificity reasonably to alert the agency.’ An agency cannot be faulted for failing to address such issues that were not raised by petitioners.” Appalachian Power Co. v. Envtl. Prot. Agency, 251 F.3d 1026, 1036 (D.C. Cir. 2001). These requirements for administrative exhaustion apply with even greater force in the Tenth Circuit because administrative review actions in this Court are governed by the Federal Rules of Appellate Procedure. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994) (“A district court is not exclusively a trial court. . . . it must sometimes act as an appellate court. Reviews of agency action in the district courts must be processed as appeals. In such circumstances the district court should govern itself by referring to the Federal Rules of Appellate Procedure.” (emphasis in original)). Under the Federal Rules of Appellate Procedure, “a party that has waived a right is not entitled to appellate relief.” United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (emphasis in original). Indeed, “there is no appeal from violation of a waived right.” United States v. Aptt, 354 F.3d 1269, 1281 (10th Cir. 2004). Courts “typically find waiver in cases where a party has invited the error that it now seeks to challenge . . . .” Cruz-Rodriguez, 570 F.3d at 1183. Here, the County not only failed to raise to BLM any of the arguments that it now raises in this lawsuit, but it specifically gave its full support for the decision that BLM made. This is classic waiver. Even though BLM’s environmental analysis discussed compliance with the relevant land use plans, the County never alleged that BLM was out of compliance therewith. Compare EA at 23 of 158 and Exhibit A. The County’s comments to BLM never asserted that Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 17 of 25 18 BLM had an obligation to reduce the overpopulation of wild horses in a shorter timeframe than BLM had proposed in Alternative 1. Exhibit A. Instead, the County expressly stated, “Beaver County is fully in support of Alternative 1 in the EA to remove excess wild horses to AML numbers and then implement population growth suppression.” Exhibit A at 3. BLM adopted Alternative 1. DR/FONSI at 6 of 158. The County cannot express its full support for BLM’s decision and then sue BLM on grounds it never brought to BLM’s attention during the administrative process. Preventing BLM from being sandbagged in this fashion is exactly why the doctrines of exhausting administrative remedies and waiver exist and why this action should be dismissed. B. The County Cannot Establish “Agency Action” Under the APA The County fails to invoke the APA’s waiver of sovereign immunity because it cannot show that BLM had a mandatory duty under the WHBA to immediately remove all excess horses in a timeframe shorter than six to ten years. Because the WHBA does not contain an internal standard of judicial review, the APA governs this court’s review of the County’s WHBA claims. In Defense of Animals, Dreamcatcher Wild Horse and Burro Sanctuary v. U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014). The APA waives sovereign immunity by allowing a party “suffering legal wrong because of agency action” to seek judicial review. 5 U.S.C. § 702. The APA defines “agency action” to include, among other things, a “failure to act.” 5 U.S.C. § 551(13). To remedy a “failure to act,” Congress authorized courts under the APA to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, in order for a “failure to act” to meet the definition of “agency action” for purposes of the APA, the Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 18 of 25 19 plaintiff must show “that an agency failed to take a discrete agency action that it is required to take. . . .” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). Thus, section 706(1) of the APA “empowers a court only to compel an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, without directing how it shall act.” Id. at 64 (citations and quotations omitted).4 As shown below, the County’s first three claims fail to meet the requirements of “agency action.” The County’s first claim is discussed separately, and its remaining two claims are discussed together. 1. The County Cannot Show That BLM Acted to Violate FLPMA or That It Failed to Act Thereunder The County’s first claim fails to invoke the APA’s waiver of sovereign immunity because the County cannot show that BLM’s action caused a violation of FLPMA or that BLM failed to act to prevent one. The County alleges that BLM violated FLPMA because the wild horse population exceeds AML. ECF No. 2 at 15. However, the County fails to allege, much less prove, how any discrete action from BLM caused an overpopulation of horses. Indeed, the number of wild horses on the range may exceed AML without any action from BLM whatsoever. Given that the County does not attempt to show that BLM actually took a discrete action to exceed AML, the County appears to argue that BLM is in violation of the governing land use 4 The relief under section 706(1) of the APA is akin to mandamus relief. Norton, 542 U.S. at 63. Consequently, the availability of this “remedy under the APA technically precludes [the County’s] alternative request for a writ of mandamus, although the mandatory injunction is essentially in the nature of mandamus relief.” Mount Emmons Mineral Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997) (citing W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993)). Therefore, the County’s Fourth Cause of Action for mandamus relief is not available due to its request for relief under section 706(1) of the APA. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 19 of 25 20 plans by failing to act to prevent an AML exceedance. However, this type of argument is precisely what the Supreme Court rejected in Norton. In Norton, the plaintiffs argued that BLM had failed to act by not living up to the land use plan’s mandate to protect Wilderness Study Areas from “impairment” caused by off-road vehicles. 542 U.S. at 65. The Supreme Court rejected the plaintiff’s claim. The Court reasoned that although the land use plan “is mandatory as to the object to be achieved . . . it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary” to amount to a “failure to act” under the APA. Id. at 66. Conversely, the Court stated that examples of discrete actions qualifying as a “failure to act” include “the failure to promulgate a rule or take some decision by a statutory deadline.” Id. at 63. The Court further stated that general statutory declarations as to what an agency should do are insufficient to create a statutory duty on which to base a failure to act claim under the APA. Instead, the law must specifically require the agency to take a particular discrete action. Id. at 66. In terms of the specificity required to constitute a “failure to act,” the Court reasoned: If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved—which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to- day agency management. . . . The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA. Id. at 66-67. If such specificity were not required, the Court held, a plaintiff could seek “wholesale improvement of this program by court decree, rather than in the offices of the Department of the halls of Congress, where programmatic improvements are normally made.” Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 20 of 25 21 Id. at 65. Thus, to find that BLM failed to act for purposes of waiving sovereign immunity under the APA, the County must show: (1) “a specific, unequivocal command” placed on the agency, (2) to take a “discrete agency action,” that (3) the agency has failed to take. Id. at 63- 64. Applying these standards, the County cannot establish a failure to act as to BLM and excess wild horses. Merely exceeding AML does not “trigger any duty on the part of BLM” to take any action. Wyoming v. U.S. Dep’t of Interior, 839 F.3d 938, 944 (10th Cir. 2016). Although AML is mandatory under the land use plans, neither FLPMA nor the governing land use plans themselves state with any specificity the discrete action BLM must take to maintain those numbers. Thus, the County’s first claim fails to establish a “failure to act,” “agency action,” a waiver of sovereign immunity, or subject matter jurisdiction. It should be dismissed.5 2. BLM Has No Mandatory Duty to Immediately Reduce Wild Horses From Overpopulation to AML in a Period Shorter Than Six to Ten Years. The County’s second and third claims fail to invoke a waiver of sovereign immunity because even though the WHBA imposes a duty to immediately gather once certain criteria is met, the WHBA does not impose upon BLM a mandatory duty to immediately reduce an overpopulation of wild horses to AML. Instead, the WHBA gives BLM the necessary time to make such a reduction in a way that will achieve AML without jeopardizing the herd as a whole. 5 To establish a “failure to act” under FLPMA, the County must show that FLMPA itself or the land use plans promulgated thereunder impose a specific, non-discretionary duty for BLM to take certain actions when confronted with a wild horse overpopulation. The County cannot base its failure to act claim under FLPMA by borrowing from a duties imposed in the WHBA. Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 21 of 25 22 The portion of the WHBA upon which the County relies to argue that BLM has such a duty provides: Where the Secretary determines . . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels. Such action shall be taken . . . until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from deterioration associated with overpopulation. 16 U.S.C. § 1333(b)(2) (emphasis added). When interpreting statutes, this Court begins with the plain language. Salazar v. Butterball, LLC, 644 F.3d 1130, 1136 (10th Cir.2011). “The plainness of statutory language ‘is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’” United States v. Burkholder, 816 F.3d 607, 613 (10th Cir. 2016) (citations omitted). Additionally, “[a] statute must be construed as ‘mandated by the grammatical structure.’” Resolution Trust Corp. v. Love, 36 F.3d 972, 976 (10th Cir. 1994) (quoting United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989)). As shown below, these principles of construction show that BLM’s duty to “immediately remove excess animals” does not mean that “all excess animals shall immediately be removed at once.” Instead, BLM has discretion and time to take removal actions that are in the best interests of the wild horse population while achieving AML. After imposing the duty to “immediately remove,” the WHBA provides in the next sentence that “[s]uch action [i.e., removal] shall be taken . . . until all excess animals have been removed . . . .” 16 U.S.C. § 1333(b)(2) (emphasis added). Although the word “action” is singular, 1 U.S.C. § 1 provides that it may be interpreted as plural. Reading “action” as plural Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 22 of 25 23 is appropriate because of the word “until.” In this context, the word “until” is functioning grammatically as a conjunction.6 When used as a “conjunction,” the word “until” means, “so that eventually.” Until, Shorter Oxford English Dictionary vol. 2 (5th ed. 2002). In other words, Congress allows BLM to take multiple removal actions so that eventually it may “restore a thriving natural ecological balance to the range . . . .” 16 U.S.C. § 1333(b)(2). Congress does not require BLM to take a herd from overpopulation to AML in one immediate gather. This reading comports with the purposes of the WHBA. Congress stated that its policy is to protect wild horses and burros “from capture, branding, harassment, or death” because they are “an integral part of the natural system of the public lands.” 16 U.S.C. § 1331; Kleppe, 426 U.S. at 531 (stating that the WHBA “was enacted in 1971 to protect ‘all unbranded and unclaimed horses and burros on public lands of the United States’”). Thus, the WHBA is a protection statute; it is not the “Wild Horses and Burros Removal Act.” Given its protective purpose, Congress could not have intended the WHBA to impose a mandatory duty upon BLM to remove all excess wild horses at once because, if such a duty were imposed, BLM would have to immediately remove all excess horses even if doing so would jeopardize the health of the wild horse herds on public land. That is contrary to the WHBA’s stated purpose. Therefore, finding that BLM has discretion to determine the number and the frequency of removal actions is consistent with the protective purposes of the WHBA. Moreover, the legislative history of section 1333(b)(2) further confirms this 6 Here, the word “until” is a conjunction because it connects to clauses in the sentence. Conjunction, Shorter Oxford English Dictionary vol. 1 (5th ed. 2002) (“An uninflected word . . . used to connect clauses or sentences, or to coordinate words in the same clause.”). Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 23 of 25 24 interpretation. Section 1333(b)(2) was enacted as part of the 1978 amendments to the WHBA. Public Rangelands Improvement Act, Pub. L. 95-154, § 14(b), 92 Stat. 1810 (1978). The committee report in the House of Representatives on these amendments recognized that when the agencies find that removal is appropriate, the agency must remove the excess animals. H. Rep. No. 95-1122 at 21-23 (1978). However, the committee further stated that agencies should consider conducting their “roundups” neither “during, or immediately prior to, the foaling season; [and] rounding up only those animals which appear desirable for adoption . . . .” Id. at 22. Indeed, if Congress intended to impose a mandatory duty upon BLM to immediately round up all excess animals, then Congress would not have recommended that BLM consider these approaches when engaging in gathers because neither congressional suggestion would immediately lead to a full reduction of excess horses to required numbers. Thus, Congress required removal of excess wild horses while granting BLM the discretion to determine when, how, and how often to remove excess horses in a way that will not prejudice the wild horse herds as whole. Given the plain language, purpose, and legislative history of section 1333(b)(2), the County cannot show that the WHBA imposes upon BLM a mandatory duty to immediately reduce an overpopulation of wild horses to AML. Instead, although BLM must immediately engage in a removal action, it has discretion in terms of how often and to what extent it will engage in those actions to bring the wild horse population into compliance with the respective land use plans. As the County recognizes here, BLM has already engaged in a removal action but has decided that further removals will be done over six to ten years to protect the health of Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 24 of 25 25 the herd. ECF No. 10. This approach complies with the WHBA; it does not violate any duty imposed thereunder. Consequently, the County cannot show that BLM’s decision to remove excess horses in a timeframe shorter than six to ten years constitutes a “failure to act” under the APA. And by failing to establish a “failure to act,” the County has failed to invoke the APA’s waiver of sovereign immunity, which requires dismissal of its second and third claims. CONCLUSION As shown above, this Court lacks subject matter jurisdiction over this action because the County has failed to establish standing and to invoke a waiver of sovereign immunity under the APA. Accordingly, this Court should dismiss this action. DATED this 3d day of May 2017. JOHN W. HUBER United States Attorney /s/ Jared C. Bennett JARED C. BENNETT Assistant United States Attorney Case 2:17-cv-00088-CW Document 20 Filed 05/03/17 Page 25 of 25 EXHIBIT A Case 2:17-cv-00088-CW Document 20-1 Filed 05/03/17 Page 1 of 5 BEAVER COUNTY COMMISSION 105 East Center Michael F. Dalton Tammy T. Pearson P.O. Box 789 Chairman Member Beaver, UT 84713 Mark S. Whitney Scott Albrecht P: (435)438-6490 Member Administrator F: (435)438-6481 Jan 5, 2016 BLM Cedar City Field Office 176 E. DL Sargent Drive Cedar City, Utah 84721 Re: 4720 (UTC010) Comments on the proposed Sulphur Wild Horse gather. Attn: Cedar City Field Office Manager Beaver County, Utah respectfully files the following comments on the above-referenced BLM Environmental Assessment for the Sulphur Wild Horse Gather Plan, dated December 18, 2015. The County's interest in this matter arises from the fact that wild horses in Beaver County, specifically in the Sulphur HMA, have multiplied to the extent they have become a nuisance in this county. The current AML authorizes a population not to exceed 250 animals(180 adults). We believe there are currently well over 800 wild horses in this HMA. THAT IS AN EXCESS!!! That point cannot be emphasized strongly enough. Anything over 250 animals is an excess, but to be nearly 4 times over the limit is an egregious mismanagement of resources. Wild horses and burros have been given special protections through the Wild Free- Roaming Horses and Burros Act of 1971(WFRHBA). Since the passage of this act, Case 2:17-cv-00088-CW Document 20-1 Filed 05/03/17 Page 2 of 5 by Congress, the population of wild horses in the Western United States has increased from a BLM estimate of 17,300 animals to potentially more than 50,000 animals today. Wild horses and burros have virtually no natural predators and have a typical reproduction rate of 20% per year, which will double the population every 4 years. The management of Wild Horses and Burros is delegated to the BLM through WFRHBA, but there are additional laws and policies that must guide the BLM in managing these wild animals as stipulated in 43 Code of Federal Regulations(CFR): 43 CFR 4700.0-2 One of the objectives regarding wild horse management is to manage wild horses “as an integral part of the natural system of the public lands under the principle of multiple use . . .” 43 CFR 4700.0-6(a-c) Requires that BLM manage wild horses “…as self-sustaining populations of healthy animals in balance with other uses and the productive capacity of their habitat … considered comparably with other resource values …” while at the same time “…maintaining free-roaming behavior.” 43 CFR 4700.0-6 (e): Healthy excess wild horses for which an adoption demand by qualified individuals exists shall be made available at adoption centers for private maintenance and care. 43 CFR 4710.3-1 “Herd management areas shall be established [through the land use planning process] for the maintenance of wild horse and burro herds. In delineating each herd management area, the authorized officer shall consider the appropriate management level for the herd, the habitat requirements of the animals, the relationships with other uses of the public and adjacent private lands, and the constraints contained in 4710.4. The authorized officer shall prepare a herd management area plan, which may cover one or more herd management areas.” 43 CFR 4710.4 “Management of wild horses and burros shall be undertaken with the objective of limiting the animals' distribution to herd areas. Management of wild horses shall be at the minimum level necessary to attain the objectives identified in approved land use plans and herd management area plans.” 43 CFR 4720.1 “Upon examination of current information and a determination by the authorized officer that an excess of wild horses or burros exists, the authorized officer shall remove the excess animals immediately.” Under 43 CFR 4180, it is required that all BLM management actions achieve or maintain healthy rangelands. With a wild horse population that has exploded in this area, and with the policy guidance to manage for healthy herds as well as healthy habitat, the necessity to gather excess animals goes beyond question. It is imperative!! Case 2:17-cv-00088-CW Document 20-1 Filed 05/03/17 Page 3 of 5 The problems associated with excess horse numbers are numerous. They have been the cause of serious safety concerns on Highway 21. This should never be an issue because typically, wild horse herds rarely venture far out into the open valleys. Horses normally stay near the pinyon/juniper covered hills, but with so many horses vying for forage, the result is horse bands expanding into areas they wouldn't normally be in. This has resulted in car collisions on Highway 21. Moreover, there is an added problem with "stud piles" being left on the highway as territorial markers by the studs, which is also a safety hazard. Additionally, the wild horses are flooding into the Indian Peak Wildlife Management Area. This state owned land is a dedicated refuge for elk and deer herds and is managed for them specifically. It is not managed for wild horses, nor is it part of the HMA and they need to be removed immediately. Other problems that must be considered are the impacts of excess horses on the range and the competition with livestock and wildlife. This problem is exacerbated by the ongoing drought. The horses are also very damaging to the water sources and limited riparian areas that exist in the area. With the overpopulation, these horses are heavily concentrated in areas in which they do considerable damage to water and forage resources. Beaver County is fully in support of Alternative 1 in the EA, to remove excess wild horses to AML numbers and then implement population growth suppression. Wild Horses are a wonderful resource, but they must be managed appropriately to balance the other resources and range needs. The current over-population of horses is creating a severe imbalance and is very detrimental to the range, wildlife, livestock and to the horses themselves. We fully support and encourage all efforts to bring wild horse numbers under the AML and to maintain that level. Respectfully submitted. Keven Whicker Public Lands Administrator, Beaver County, Utah. Case 2:17-cv-00088-CW Document 20-1 Filed 05/03/17 Page 4 of 5 Case 2:17-cv-00088-CW Document 20-1 Filed 05/03/17 Page 5 of 5