Black Dog Outfitters Inc. v. State Outfitters

Decision Date13 May 2011
Docket NumberCivil No. 09–CV–00663–E–EJL.
PartiesBLACK DOG OUTFITTERS, INC., Plaintiff,v.State of IDAHO OUTFITTERS AND GUIDES LICENSING BOARD, United States Department of the Interior/Bureau of Land Management and United States Department of Agriculture/United States Forest Service, Defendants.
CourtU.S. District Court — District of Idaho


John M. Curney, Jr., Curney, Garcia, Farmer, Pickering & House, San Antonio, TX, for Plaintiff.Bruce J. Castleton, Naylor and Hales, Deborah A. Ferguson, U.S. Attorney's Office, Boise, ID, for Defendants.


EDWARD J. LODGE, District Judge.


Pending before the Court in the above-entitled matter is Defendant United States Department of the Interior/Bureau of Land Management and United States Department of Agriculture/United States Forest Service's (the Federal Defendants) Motion to Dismiss Third Amended Complaint. Defendant State of Idaho Outfitters and Guides Licensing Board (IOGLB) has filed a non-opposition to the Motion. The Motion is made under Federal Rule of Civil Procedure 12(b)(6). The matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record. Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this Motion shall be decided on the record before this Court without oral argument.


Plaintiff, Black Dog Outfitters, Inc. (Black Dog), is an Idaho corporation that provides outfitting services for hunting and fishing excursions on the Snake River in Idaho. The current regulatory scheme allows for only eight permits and eleven licenses for outfitters on the South Fork of the Snake River. Black Dog seeks to have additional permits and licenses issued for the South Fork, arguing the limitations imposed by the Defendants are arbitrary and capricious as there is no scientific basis or study for the limitations. In October of 2007, Black Dog undertook its own investigation into the availability of outfitting opportunities on the South Fork on the Snake River and concluded that the river was not being used to capacity. (Dkt. No. 56, pp. 5, 8–9.) Black Dog alleges that the various state and federal agencies responsible for regulation of the South Fork had never, prior to the summer of 2008, conducted a capacity study nor shown there is no basis for the current limitations on the numbers of permits and licenses. (Dkt. No. 56, pp. 7–8, 10.)

Though acknowledging the Federal Defendants indicated in 2008 they would undertake a capacity study in response to its complaints, Black Dog contends the study never materialized. (Dkt. No. 56, p. 11.) Black Dog further questions the viability of any such study's objectivity or scientific basis and, instead, argues it is only intended to confirm the status quo. (Dkt. No. 56, pp. 19–20.) As a result of the findings of its own study, Black Dog submitted applications to each of the Defendant agencies for outfitting opportunities on four different resources. (Dkt. No. 56, p. 9.) These applications were denied, Black Dog argues, without any basis other than “the fact that the government agencies noted that there were ‘no available licenses or permits' for the resources.” (Dkt. No. 56, p. 9.)

Black Dog further alleges the Defendants took discriminatory action toward it by restricting it from utilizing its waterfowl hunting license because of its complaints. (Dkt. No. 56, pp. 11–12.) Black Dog contends there was no opportunity to comment on these actions that the Defendants took intending to intimidate and retaliate against it. (Dkt. No. 56, pp. 12–13.)

In addition, Black Dog argues the existing permits are held almost exclusively by two owners, creating a monopolistic situation that is enabled by the Federal Defendants and the IOGLB. (Dkt. No. 56, pp. 14–16.) The Defendants, Black Dog argues, implicitly exempts these two owners and their operations from regulations while applying them to exclude Black Dog. (Dkt. No. 56, p. 21.)

On December 18, 2009, Black Dog, filed its initial Complaint in this action alleging jurisdiction under 28 U.S.C. § 1331, § 1367 and § 1337. (Dkt. No. 1.) The Complaint brought the action pursuant to 28 U.S.C. § 2201, seeking declaratory relief against the Federal Defendants and the IOGLB in order to clarify the rights between the parties and to monitor the ongoing capacity study to ensure it is fair and neutral. (Dkt. No. 1.) Black Dog further sought to have the government restrictions on the South Fork declared unconstitutional with further allegations to that affect brought under the Commerce Clause. (Dkt. No. 1.) On May 10, 2010, the Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court denied the Motion to Dismiss and granted Black Dog's request to amend its Complaint. (Dkt. No. 45.)

Thereafter, Black Dog filed several amended Complaints. (Dkt. Nos. 52, 53, 56.) The Court allowed some of the amendments but ultimately cut off the repeated filings and deemed the Third Amended Original Complaint (“Amended Complaint”) to be the final submission in this case. (Dkt. Nos. 56, 58.) In the Amended Complaint, Black Dog again seeks declaratory relief pursuant to the First, Fifth, and Fourteenth Amendments as well as the Commerce Clause; it raises the following causes of action:

I. Violation of the First Amendment by Retaliation

II. Multiple Use and Sustained Yield Act Violations

III. Violation of Equal Protection

IV. Violation of the Right to Due Process and Property

V. Violation of the Commerce Clause through the Memorandum of Understanding among the Federal and State Entities

VI. The Regulations of the IOGLB have been pre-empted by Federal Statutes

(Dkt. No. 56.) The Federal Defendants have filed the instant Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 65.)


A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a party's claim for relief. When considering such a motion, the Court's inquiry is whether the allegations in a pleading are sufficient under applicable pleading standards. Federal Rule of Civil Procedure 8(a) sets forth minimum pleading rules, requiring only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id.

A motion to dismiss will only be granted if the complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). Although we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1949–50; see also Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). Therefore, “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” Caviness v. Horizon Comm. Learning Cent., Inc., 590 F.3d 806, 811–12 (9th Cir.2010) (citation omitted).

1. APA Claim: Final Agency Action

The claims raised in Black Dog's Amended Complaint can only be properly brought under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et al. In this Motion, the Federal Defendants argue the claims should be dismissed mainly because there has been no “final agency action” as required by the APA. (Dkt. No. 65.) Because this argument generally applies to all of the claims, the Court will address it first.

“The APA expressly declares itself to be a comprehensive remedial scheme: it states that a ‘person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review’... and then sets forth the procedures for such review” Western Radio Serv. Co. v. United States Forest Service, 578 F.3d 1116, 1122 (9th Cir.2009) (quoting 5 U.S.C. §§ 702, 704, 706). “The APA's comprehensive provisions ... allow any person ‘adversely affected or aggrieved’ by agency action to obtain judicial review thereof, so long as the decision challenged represents a ‘final agency action for which there is no other adequate remedy in a court.’ Id. (quoting Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)). “Specifically, the APA authorizes a reviewing court to:

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be ... (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; [or] (B) contrary to constitutional right, power, privilege, or immunity ....

5 U.S.C. § 706(1)-(2); see also Darby v. Cisneros, 509 U.S. 137, 143–47, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993).

Section 704 of the APA provides that the cause of action contained in § 702 only applies to final agency actions. “The APA's comprehensive provisions ... allow any person ‘adversely affected or aggrieved’ by agency action to obtain judicial review thereof, so long as the decision challenged represents a ‘final agency action’ for which there is no other adequate remedy in a court.” Western Radio, 578 F.3d at 1122 (quoting Webste...

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