Strich v. U.S.

• Decision Date: 06 April 2011
• Docket Number: Civil Case No. 09–cv–01913–WJM–KLM.
• Citation: 793 F.Supp.2d 1238
• Parties: Ronald STRICH, Plaintiff,v.UNITED STATES of America, United States Department of the Interior, United States Department of Agriculture, and any and All Unknown Persons Who Claim an Interest in the Subject Matter of this Action, Defendants.
• Court: U.S. District Court — District of Colorado

793 F.Supp.2d 1238

Ronald STRICH, Plaintiff,

v.UNITED STATES of America, United States Department of the Interior, United States Department of Agriculture, and any and All Unknown Persons Who Claim an Interest in the Subject Matter of this Action, Defendants.

Civil Case No. 09–cv–01913–WJM–KLM.

United States District Court, D. Colorado.

April 6, 2011.

Ronald William Carlson, Carlson Carlson & Dunkelman, LLC, Frisco, CO, Geoffrey M. Williamson, Michael F. Feeley, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, for Plaintiff.Stephen D. Taylor, U.S. Attorney's Office, Denver, CO, for Defendants.

OPINION AND ORDER

WILLIAM J. MARTÍNEZ, District Judge.

The matters before the Court are (1) defendants' Motion for Summary Judgment on Plaintiff's First Claim for Relief in the Second Amended Complaint by Defendant United States of America, Defendant United States Department of the Interior, and Defendant United States Department of Agriculture, ECF No. 123; and (2) Plaintiff's Motion for Leave to File Surreply to Defendants' Motion for Summary Judgment, ECF No. 170. The Court grants in part and denies in part defendants' motion for summary judgment, albeit construed as a motion to dismiss for lack of subject matter jurisdiction, and denies as moot plaintiff's motion to file a surreply.

I. JURISDICTION

The Court has putative subject matter jurisdiction of this action under 28 U.S.C. § 1331 (federal question), in combination with the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the “APA”).

II. STANDARD OF REVIEW

Although defendants style their motion as one for summary judgment, the gravamen of their argument is that certain of the actions plaintiff challenges do not constitute final agency actions subject to the Court's review and are barred by the applicable statute of limitations. Because defendants are the United States and various of its agencies, defendants' motion implicates the government's waiver of sovereign immunity and accordingly the court's subject matter jurisdiction. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (noting the jurisdictional nature of waivers of sovereign immunity); see also Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir.1994), cert. denied, 514 U.S. 1109, 115 S.Ct. 1960, 131 L.Ed.2d 852 (1995) (recognizing that federal courts are courts of limited jurisdiction and only may adjudicate claims that the Constitution or Congress have given them authority to hear and determine). As such, the Court construes the defendants' motion as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).¹ See Neiberger v. Hawkins, 150 F.Supp.2d 1118, 1120 (D.Colo.2001).

Such a motion may consist of either a facial or a factual attack on the complaint. See Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003), cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004). Defendants' motion goes beyond the allegations of the complaint to challenge the facts on which subject matter jurisdiction rests, and thus constitutes a factual attack on the sufficiency of plaintiff's complaint. The Court, therefore, does not presume the truth of the allegations of the complaint. Sizova v. National Institute of Standards & Technology, 282 F.3d 1320, 1324 (10th Cir.2002). Rather, the Court has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Davis, 343 F.3d at 1296 (quotation marks omitted).²

III. ANALYSIS

A. MOTION FOR LEAVE TO FILE SURREPLY

Before addressing the substance of the motion, however, the Court must consider plaintiff's motion for leave to file a “surreply.” ³ After defendants' motion was fully briefed, the Court determined that plaintiff's claim for declaratory judgment was subject to review pursuant to the APA. (Order Granting Defendants' Motion for Order, ECF No. 164.) Plaintiff's purported “surreply” seeks to advise the court that a motion for summary judgment is inconsistent with the standards for judicial review under the APA. ( See Motion for Leave To File a Surreply to Defendants' Motion for Summary Judgment, ECF No. 170, ¶ 7 at 3) (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579–80 (10th Cir.1994).) Because defendants' motion is more properly construed as a motion to dismiss pursuant to Rule 12(b)(1), however, this argument is moot. Alternatively, plaintiff claims that the court cannot reach the issues raised in defendants' motion without considering the administrative record, which as yet has not been filed. However, the parties both have submitted, without objection on either side, all documents they believe relevant to the determination of the jurisdictional motion. Thus, the full administrative record is not required to resolve the issues raised in defendants' motion. ( See Reply in Support of Motion for Leave To File a Surreply to Defendants' Motion for Summary Judgment, ECF No. 172, at 5 (“Plaintiff does not believe any additional facts that might be found in the administrative record would change [the] accrual date [of plaintiff's claims].”).) Accordingly, the Court denies plaintiff's motion to file a “surreply” as moot.

B. MOTION REGARDING SUBJECT MATTER JURISDICTION

The Court now turns to the merits of defendants' motion. The facts of this case are well known to the parties and need not be repeated at length. Simply stated, plaintiff contends that the U.S. Forest Service (“Forest Service”) ⁴ failed to follow its regulations when it: (1) “declared” a road that traverses plaintiff's property as “Forest Development Road 152”, (2) subsequently “declared” the road as “Forest System Road 110–A”, (3) established a trailhead at the western end of the road, and (4) published motorized vehicle use maps depicting the road as “Other Public Road.” ⁵ Plaintiff challenges these actions under the APA.

The Court's subject matter jurisdiction over APA actions is limited to claims regarding “final agency actions” that are raised within the relevant statute of limitations. See 5 U.S.C. § 704; see Gordon v. Norton, 322 F.3d 1213, 1219–20 (10th Cir.2003) (affirming dismissal for lack of subject matter jurisdiction because, inter alia, challenged action was not final agency action); Urabazo v. United States, No. 91–6028, 947 F.2d 955, 1991 WL 213406, at *5 (10th Cir. Oct. 21, 1991) (table case), cert. denied, 505 U.S. 1223, 112 S.Ct. 3037, 120 L.Ed.2d 906 (1992) (holding action should be dismissed for lack of jurisdiction because it is barred by limitations period of § 2401(a)). Plaintiff has the burden of proving subject matter jurisdiction and an express waiver of sovereign immunity. Garcia v. United States Air Force, 533 F.3d 1170, 1175 (10th Cir.2008); Smith v. Krieger, 643 F.Supp.2d 1274, 1281 (D.Colo.2009). Defendants contend subject matter jurisdiction is lacking in this case because the first two alleged violations are not “final agency actions” and the first three are barred by the six-year statute of limitations applicable to the APA.⁶

1. Final Agency Action

Defendants first claim their renaming of the road to “Forest System Road 110–A” is not a final agency action subject to this Court's review. ⁷ For an agency action to be “final,” it: (1) “must mark the consummation of the agency's decision-making process”; and (2) “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotation omitted).

a. Renaming of the Road

It is undisputed that the road was identified in the Forest Service database prior to 1984 as “Forest Development Road 152.” (Defendants' Motion for Summary Judgment, ECF No. 123, ¶ 7 at 6.) Beginning in 1996, the road was renumbered twice and was ultimately renamed in 2001 as “National Forest System Road 110.A.” Defendants characterize these acts as simply giving a pre-existing road a new identification number or terminology. Defendants therefore claim the 2001 renaming does not possess the requisite legal consequences to deem it a “final agency action.” ( Id. at 14.) In response, plaintiff argues the renaming resulted in a furtherance of the “uncertainty regarding the public's right to use the full length of the road and trailhead, as well as uncertainty regarding Plaintiff's ability to completely close the portion of the road that crosses his property.” (Plaintiff's Response to Motion for Summary Judgment, ECF No. 139, at 15.)

Plaintiff's argument regarding the legal consequences flowing from the name change is wanting. Plaintiff neither points to supporting case law nor proffers a policy argument as to why “uncertainty” regarding rights equates to a determination of those rights or obligations, or to an actual legal consequence. Moreover, the impotency of the name change is reflected in the fact that the parties' and the public's rights would have remained the same had the name not been changed at all. See Golden and Zimmerman, 599 F.3d 426, 433 (4th Cir.2010) (comparing the rights before and after the challenged publication as part of determining whether the challenged publication resulted in legal consequences). Legal consequences emanate from an act that establishes rights to the road, not from the simple act of renaming the road after the rights have already been determined. Accordingly, the Court finds the defendants' renaming of the road in 2001 does not constitute a final agency action and, thus, the Court lacks subject matter jurisdiction to review it. This aspect of plaintiff's First Claim for Relief shall be dismissed with prejudice.

Having determined the Court lacks subject matter jurisdiction to review the 2001 renaming of the road, the Court need not determine whether plaintiff's challenge to the same is barred by the applicable statute of limitations. The Court is, however, left to determine whether the actions...