Institute for Wildlife Protection v. Norton, C04-0594RSM.

• Decision Date: 07 September 2004
• Docket Number: No. C04-0594RSM.,C04-0594RSM.
• Citation: 337 F.Supp.2d 1223
• Parties: INSTITUTE FOR WILDLIFE PROTECTION, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

Page 1223

337 F.Supp.2d 1223

INSTITUTE FOR WILDLIFE PROTECTION, et al., Plaintiffs, v. Gale NORTON, et al., Defendants.

No. C04-0594RSM.

United States District Court, W.D. Washington, at Seattle.

September 7, 2004.

Don Webb, Institute for Wildlife Protection, Eugene, OR, Michael C. Subit, Frank Freed Subit & Thomas, Seattle, WA, for Plaintiffs.

Keith W. Rizzardi, United States Department of Justice, Wildlife and Marine Resources Section, Washington, DC, for Defendants.

ORDER OF DISMISSAL

MARTINEZ, District Judge.

This matter comes before the Court on defendants' motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and motion for judgment on the pleadings. (Dkt.# 11). On March 19, 2004, plaintiffs filed the instant lawsuit, raising four claims, and alleging, inter alia, that defendants have failed to make preliminary determinations pertaining to plaintiffs' citizen petition to list the Western Gray Squirrel as an endangered species under the Endangered Species Act ("ESA"). (Dkt.# 1). Following the filing of the Complaint, the parties filed numerous motions and supporting briefs. (See Dkts. # 6, # 11, # 12, # 14, # 15, # 17, # 18, # 19, # 24, # 25, # 26 and # 27).

The Court subsequently granted summary judgment on claim one, denied voluntary remand, denied a request for an extension of time in which to respond to dispositive motions, declined to compel the filing of the administrative record, declined to stay discovery, and re-noted defendants' cross-motions to dismiss claims two, three and four for consideration on August 20, 2004. (Dkt. # 28).

Plaintiffs have filed a response to the motions to dismiss, and defendants have filed their reply. (Dkts. # 29 and # 30). The briefing on the various motions is now complete. Accordingly, it is hereby ORDERED:

(1) Defendants' 12(c) Motion for Judgment on the Pleadings. Defendants' Cross-Motion for Judgment on the Pleadings (Dkt. # 11 at 17) is GRANTED.

A. Standard of Review

Under Rule 12(c) of the Federal Rules of Civil Procedure, any party may seek judgment on the pleadings after the pleadings are closed. Fed.R.Civ.P. 12(c). A judgment on the pleadings is properly granted when, taking all of the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law. Fajardo v. County of Los Angeles, 179 F.3d 698 (9th Cir.1999) (citation omitted); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). "If ... matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment...." Fed.R.Civ.P. 12(c). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Claim Two — Promotion of Non-Mandatory Work Over Citizen Petitions

Plaintiffs allege in claim two that defendants regularly "promote" non-mandatory work, such as making findings on candidate species, above that of work on citizen petitions to list endangered species. (Dkt. # 1 at 11-12). Plaintiffs also allude that defendants may be using listing funds to perform non-mandatory work. (Dkt. # 29 at 5). Defendants argue that this claim should be dismissed under Rule 12(c) because much of the non-mandatory work is funded separately from the listing budget, and therefore has no effect on the listing process, and because this Court has already rejected the same argument in previous cases. (Dkt. # 11 at 17-19). For the reasons set forth below, the Court agrees with defendants.

In Institute for Wildlife Protection v. Norton, 303 F.Supp.2d 1175 (W.D.Wash.2003), the Honorable Marsha J. Pechman, United States District Judge, rejected a nearly identical argument to that in the instant case. The Court explained:

[t]he fact that, during the period in question, FWS consigned a portion of their time and budget to activities that did not directly support their listing activities is not probative on the issue of whether funding limitations prevented them from making the 90-day finding on plaintiffs' petition in a timely manner. While analyzing and investigating the status of potentially endangered species and critical habitats is unquestionably the priority function of the agency under the ESA, it is not possible (and plaintiffs do not actually suggest) that they can do so 100% of the time. Their budget consists of other funds in addition to those earmarked for listing purposes and presumably the agency has other administrative responsibilities common to the functioning of any government bureaucracy. Unless plaintiffs can offer proof that funds allotted to listing activity were actually expended for some other purpose, their proof that agency personnel at times were performing tasks unrelated or tangentially related to listing will not suffice to defeat defendants' budget argument and their corroborating evidence.

Plaintiffs go so far as to introduce "incriminating" documents from a different FWS office than the one to which their petition was assigned, arguing that the resources of every office of the agency should be brought to bear on their petition if the assigned office comes up short of funds. This position is unsupported by either statutory language, case law or common sense. Additionally, plaintiffs' suggestion that they be permitted to challenge, on a project by project basis, FWS's choice of which species to investigate for possible listing raises the specter of protracted and wasteful litigation over which species is the most endangered and deserving of the agency's limited resources.

Inst. for Wildlife Prot., 303 F.Supp.2d at 1178.

That reasoning is persuasive to the instant motion. In support of their second claim, plaintiffs point to one statement made by defendants in September of 2002 explaining that an agency decision had been delayed pursuant to the agency's listing prioritization guidelines. (See Dkt. # 29 at 5). Those guidelines set the agency's first priority as review of emergency listings, their second priority as processing final decisions on proposed listings, their third priority as resolving the status of candidate species, and their fourth priority as processing of petitions. (Dkt. # 29, Attachment 2 at 4). However, that is nearly the exact statement that plaintiffs' relied on in support of their argument — which this Court rejected — in Inst. for Wildlife Prot., supra. See Inst. for Wildlife Prot., 303 F.Supp.2d at 1176. Thus, petitioner's statement that they did not realize defendants were "working on candidates in lieu of working on petitions" until after that litigation is disingenuous. (Dkt. # 29 at 5). Furthermore, defendants' statement provides no indication that they are unlawfully using listing funds for non-mandatory work.

Moreover, plaintiffs' own statement highlights the problem with their second claim — they have no proof that listing funds are being used on non-mandatory work. Plaintiffs state that the "issue of whether Defendants are or have been expending funds from the listing budget for non-mandatory tasks ... should not be decided on the ... motion for summary judgment, because if Plaintiffs are able to find even one instance where FWS used listing funds to work on candidates or any other non-mandatory actions, Defendants motion would be defeated." (Dkt. # 29 at 5) (emphasis added). Plaintiffs insist that the completion of discovery in this case will uncover facts pertaining to this issue. (Dkt. # 29 at 5-6).

To maintain an action in federal court, an actual case or controversy must exist, and discovery may not be used to conduct a fishing expedition in hopes that some fact supporting an allegation will be uncovered. See Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir.2004)(explaining that "district courts need not condone the use of discovery to engage in `fishing expedition [s].'") (citation omitted). Moreover, neither the ESA nor the APA provide a mechanism for challenging defendants' prioritization of its workload. Rather, those statutes allow plaintiffs to defendants' failure to complete a mandatory duty. See 16 U.S.C. § 1540(g)(1)(c) and 5 U.S.C. § 706(1). Accordingly, the Court follows Judge Pechman's reasoning in Inst. for Wildlife Prot., supra, and DISMISSES plaintiffs' second claim.

(2) Defendants' 12(b)(1) Cross-Motion to Dismiss for Lack of Subject-Matter Jurisdiction. Defendants' Cross-Motion to Dismiss Claim Three for Lack of Subject-Matter Jurisdiction (Dkt. # 11 at 19) is GRANTED.

A. Standard of Review

A motion to dismiss under Rule 12(b)(1) of the Federal Rule of Civil Procedure addresses the court's subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). They possess only that power authorized by United States Constitution and statute, which is not to be expanded by judicial decree. Id. The burden of establishing the subject matter jurisdiction rests upon the party asserting jurisdiction. Id. When considering a motion to dismiss pursuant to Rule 12(b)(1), the Court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988).

B. Claim Three — Pattern and Practice Challenges

In their Complaint, plaintiffs allege under claim three that defendants have a "long standing practice, procedure, policy and/or course of conduct to delay acting on, or failure to act on, petitions to list species under the ESA, filed by the...