Friends of Panamint Valley v. Kempthorne

Decision Date24 July 2007
Docket NumberNo. CV F 07-0487 LJO TAG.,CV F 07-0487 LJO TAG.
Citation499 F.Supp.2d 1165
CourtU.S. District Court — Eastern District of California
PartiesFRIENDS OF PANAMINT VALLEY, Little Chief Millsite Partnership, and Bryan Lollich, Plaintiffs, v. Dirk KEMPTHORNE, United States Department of the Interior, Kathleen Clarke, Director, Bureau of Land Management, Mike Pool, Director, California State Bureau of Land Management, Ridgecrest Field Office, Hector Villalobos, Field Manager, Bureau of Land Management, Ridgecrest Field Office, Bureau of Land Management, Fran P. Mainella, Director, National Park Service, James T. Reynolds, Superintendent, Death Valley National Monument, National Park Service, Defendants, and National Parks Conservation Association, Center for Biological Diversity, Public Employees for Environmental Responsibility, Sierra Club, California Wilderness Coalition, and Wilderness Society, Defendant — Intervenor Applicants.

Karen Jean Budd-Falen, Kathryn Brack Morrow, Budd-Falen Law Office, Cheyenne, WY, Martin R. Boersma, Panattoni Law Firm, Sacramento, CA, for Plaintiffs.

Guillermo A. Montero, Guillermo A. Montero, US Department of Justice, Washington, DC, for Defendants.

Edward B. Zukoski, James S. Angell, McCrystie Adams, Earthjustice, Denver, CO, Michael Ramsey Sherwood, Earthjustice Legal Defense Fund Incorporated, Oakland, CA, Lisa Tamara Belenky, San Francisco, CA, for Defendant-Intervenor Applicants.

ORDER ON FEDERAL DEFENDANTS' MOTION TO DISMISS, CONSERVATION GROUPS' MOTION TO INTERVENE, CONSERVATION GROUPS' MOTION TO DISMISS, AND STATE'S APPLICATION TO FILE AMICUS CURIAE BRIEF

(Docs.25, 27, 29, 38)

O'NEILL, District Judge.

I. INTRODUCTION

Before the Court are three motions. Defendants U.S. Department of Interior ("DOI"), Bureau of Land Management ("BLM"), National Park Service ("NPS") and several of their officials1 (collectively, "Federal Defendants") seek to dismiss, on grounds of lack of jurisdiction, Plaintiffs'2 claims to quiet title and to obtain access to the Surprise Canyon Road in Death Valley National Park. National Parks Conservation Association, Center for Biological Diversity, Public Employees for Environmental Responsibility, Sierra Club, California Wilderness Coalition, and The Wilderness Society (collectively referred to as "Conservation Groups" or "Proposed Intervenors") have moved to intervene in this action, both as-of-right and permissively. The Proposed Intervenors also filed a motion to dismiss, for lack of jurisdiction and failure to state a claim. For the reasons discussed below, this Court GRANTS the Federal Defendants' motion to dismiss for lack of jurisdiction. Without jurisdiction, this Court can not properly address Proposed Intervenors' motion to intervene and motion to dismiss, both of which are TERMINATED.

II. BACKGROUND
A. Factual3

The route at issue, Surprise Canyon Road, was originally established in the 1870s to provide access to Panamint City. Located in the Mojave Desert, Surprise Canyon Road commences at a point along the Indian Ranch Road in Inyo County, California, and runs in a northeasterly direction towards Panamint City. The route is approximately six miles long. The entire road traverses federal public lands except for those portions of the road which were not included in the Death Valley National Park.

Panamint City was the site of a shortlived silver boom. At the time it was built, Surprise Canyon Road was in a condition sufficient to allow stagecoaches, horsedrawn buggies, and freight wagons to travel to and from Panamint City. The silver mines closed in 1877 and the town was abandoned. Thereafter, Panamint City became a minor tourist attraction as a "ghost town."

Surprise Canyon Road was reconstructed in 1918 and 1924, and was improved in 1947-48. These reconstructions and improvements were necessary, as storms frequently washed out the road. A flashflood washed out Surprise Canyon Road again in 1984. After road was washed out, tourists "continued to make their way up the road using four-wheel drive vehicles until its closure by the BLM in May 2001." Complaint, ¶ 44.4

In 1994, the California Desert Protection Act of 1994, PL 103-433, October 31, 1994, 108 Stat. 4471 ("CDPA") created the Surprise Canyon Wilderness. Pursuant to this legislation, the upper portion of the canyon is within the Death Valley National Park, managed by NPS and the lower portion is on adjacent BLM land. Further, the CDPA identified Surprise Canyon Road as a "cherry stem" route through the Surprise Canyon Wilderness to Panamint City.

On March 16, 2000, the Center for Biological Diversity, the Sierra Club and the Public Employees for Environmental Responsibility (collectively, "the Center") sued the Bureau of Land Management ("BLM") for violation of Section 7 of the Endangered Species Act. In that lawsuit, the Center alleged that BLM failed to enter into formal consultation with the Fish and Wildlife Services on the effects of the California Desert Conservation Plan regarding threatened and endangered species in an area which includes Surprise Canyon. In settlement of that case, BLM entered into a court-approved stipulation acknowledging that the activities authorized, permitted or allowed under the plan might adversely affect threatened or endangered species. BLM also agreed by stipulation to prohibit motorized access to Surprise Canyon pending completion of an environmental analysis pursuant to the National Environmental Policy Act. The settlement did not limit the public's use of the Canyon for recreational hiking, travel by foot or pack animal. Moreover, the stipulation provided an exception to the closure for individuals who owned private property in the vicinity of Panamint City.

On May 23, 2001, the BLM published its "Environmental Assessment for the Proposed Interim Closure of Surprise Canyon Route P 71 Panamint Range, Inyo, California to Motorized Vehicle Use," (May 23, 2001) ("BLM 2001 Report"). That interim report proposed closing Surprise Canyon Road to all motorized vehicle use, but granted an exemption to this rule for law enforcement and other emergency vehicles. The proposed closure also provided an exemption for the owners of private property located in the vicinity of Panamint city for purposes of accessing their property. According to the BLM 2001 Report, landowners in the area of Panamint City would be issued a key to the gate, with stipulations deemed necessary to reduce the impact of motorized vehicle use on Surprise Canyon. BLM installed a gate prohibiting vehicle access to Surprise Canyon Road shortly after May 29, 2001.

After purchasing the mineral claims, Plaintiff Lollich sought to gain entry to Surprise Canyon Road via motorized vehicle and applied for a permit with the BLM Regional Office. In December 2003, Plaintiff Lollich applied to the BLM and National Park Service (NPS) for the grant of a right-of-way. Plaintiff has been unable to access his property by motorized vehicle since the BLM closed Surprise Canyon Road in 2001.

B. Procedural

On September 5, 2006, Plaintiffs filed a complaint in the District Court for the District of Columbia seeking to enforce an alleged right-of-way through Surprise Canyon, declaratory judgment and a writ of mandamus compelling the Federal Defendants to provide Plaintiffs with unfettered access to Surprise Canyon Road. On December 7, 2006, Federal Defendants filed a motion to transfer, or, in the alternative, to dismiss, because venue was improper pursuant to 28 U.S.C. §§ 1402(d), 1406(a). Plaintiffs did not oppose the motion with respect to their First, Second, and Third Claims for Relief. On February 5, 2007, this case was transferred to the Eastern District of California.

On May 18, 2007, Federal Defendants moved to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (Doc. 29), arguing that Plaintiffs' claims are barred by the United States' sovereign immunity and therefore this Court lacks subject matter jurisdiction. On the same day, Conservation Groups filed a renewed motion to intervene (Doc. 25), and also a motion to dismiss (Doc. 27). The Conservation Groups' motion to intervene contends that they are entitled to intervention as of right because, inter alia, they claim an interest relating to Surprise Canyon, based on their goals of protecting the "natural, biological, and recreational resources of Surprise Canyon from, among other things, the destructive impacts of motorized vehicle use." Conservation Groups Mot. to Intervene, 2.

On June 28, 2007, Plaintiffs filed an opposition to the Federal Defendants' motion to dismiss for lack of jurisdiction (Doc. 33), Conservation Groups' motion to intervene (Doc. 32), and motion to dismiss (Doc. 34). On June 29, 2007, Federal Defendants filed an opposition to Conservation Groups' motion to intervene (Doc. 36). On July 20, 2007, Federal Defendants and Proposed Intervenors filed responses to Plaintiffs' opposition to the motions to dismiss (Doc. 37, 40) and the Proposed Intervenors filed a reply to the Federal Defendants' and Plaintiff opposition to the motion to intervene (Doc. 39). Finally, also on July 20, 2007, the Attorney General of the State of California ("State") filed an application for leave to file an amicus curiae brief, discussing California, state law as it relates to this action. (Doc.38). This Court considered the Federal Defendants' motion to dismiss, the Conversation Groups' motions to intervene and dismiss, and the State's application for leave to file an amicus brief on the record and VACATES the August 20, 2007 hearing, pursuant to Local Rule 78-230(h).

III. DISCUSSION
A. Standards of Review
1. Motion to Dismiss-12(b)(1)

Defendants move to dismiss this action based on Federal Rule of Civil Procedure 12(b)(1), asserting that sovereign immunity bars this action. Plaintiffs assert that the statutory basis for their claims against the United States is the ...

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