Western Watersheds Project v. Bureau of Land Management

• Decision Date: 12 June 2009
• Docket Number: No. CV 08-1472-PHX-MHM.,CV 08-1472-PHX-MHM.
• Citation: 629 F.Supp.2d 951
• Parties: WESTERN WATERSHEDS PROJECT, Plaintiff, v. BUREAU OF LAND MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Arizona

629 F.Supp.2d 951

WESTERN WATERSHEDS PROJECT, Plaintiff, v. BUREAU OF LAND MANAGEMENT, Defendant.

No. CV 08-1472-PHX-MHM.

United States District Court, D. Arizona.

June 12, 2009.

Erik Bowers Ryberg, Attorney at Law, Tucson, AZ, Lauren M. Rule, Advocates for the West, Boise, ID, for Plaintiff.

Donna S. Fitzgerald, Tyler Guy Welti, US Department of Justice, Washington, DC, Richard Glenn Patrick, US Attorney's Office, Phoenix, AZ, for Defendant.

ORDER

MARY H. MURGUIA, District Judge.

Currently before the Court is the Bureau of Land Management's Motion to Dismiss Western Watersheds Project's Amended Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. # 25). After reviewing the pleadings and holding oral argument on January 13, 2009, and May 13, 2009, the Court issues the following order.

I. PROCEDURAL HISTORY

On August 11, 2008, Plaintiff Western Watersheds Project ("WWP") filed a Complaint against Defendant Bureau of Land Management ("BLM"), challenging the BLM's renewal of grazing permits and subsequent annual grazing authorizations under the Sonoran Desert National Monument Proclamation ("Proclamation"), Proclamation No. 7397, 66 Fed.Reg. 7354 (Jan. 22, 2001). (Compl., Dkt. #1, ¶¶ 75-78). WWP also alleges that the BLM has violated the Proclamation by failing to issue (1) a determination as to whether livestock grazing is compatible with the purpose of protecting the natural and historic resources on the Sonoran Desert National Monument ("SDNM" or "Monument"), and (2) a management plan addressing the necessary actions to protect the natural and historic resources on the Monument. (Amend. Compl., Dkt. # 9, ¶¶ 71-75).

Six days after filing its Amended Complaint on October 21, 2008, and prior to any responsive pleading by the BLM, WWP filed a Motion for Summary Judgment and Injunction. (Dkt. # s 10-19). WWP also filed a separate Motion for Permanent Injunction on October 31, 2008. (Dkt. # s 22-23).

On November 4, 2008, the BLM filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim under FRCP 12(b)(1) and 12(b)(6), and a Motion to Stay briefing on WWP's Motions for Summary Judgment and Permanent Injunction. (Dkt. # s 24-26). The Court held a hearing on November 18, 2008, and granted the Motion to Stay. (Dkt. #30). The Court also directed expedited briefing on the Motion to Dismiss and directed the BLM to compile the Administrative Record. (Id.). In addition, WWP withdrew its Motions for Summary Judgment and Permanent Injunction. (Id.).

On February 2, 2009, after holding oral argument, the Court issued an Order granting the BLM's motion to dismiss, holding that WWP's claims for relief were not subject to judicial review under the Administrative Procedures Act ("APA"), and in the alternative, that Section 325 of the Department of the Interior and Related Agencies Appropriation Act of 2004 barred WWP's claims relating to the BLM's renewal of grazing permits. (Dkt. # 38). Then, on February 16, 2009, WWP filed a motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e), asking the Court to reconsider its holding that WWP's claims for relief are not subject to judicial review under the APA; reconsideration was not sought on the Court's alternative holding. (Dkt. # 40). After reviewing WWP's motion, the Court ordered the BLM to respond pursuant to L.R.Civ. 7.2(g)(2), which it did, asking the Court to deny WWP's motion. (Dkt. # 49). In addition, two amicus curiae parties filed briefs in support of WWP's motion. (Dkt. # s 47, 51, 61).¹

On May 13, 2009, the Court held oral argument on WWP's motion to alter or amend the Court's February 2, 2009 order. (Dkt. #63). After the parties and amici presented their arguments, the Court granted in part WWP's motion, reopening the case, vacating its February 2, 2009 order, and reinstating the BLM's amended motion to dismiss and related pleadings. (Id.). The Court now issues a new order in light of the parties' and amici's further briefing on the issue of whether agency action or inaction taken pursuant to presidential proclamations issued under the Antiquities Act are subject to judicial review under the APA.

II. BACKGROUND

A. Sonoran Desert National Monument

On January 17, 2001, President William Jefferson Clinton established the Sonoran Desert National Monument by signing Proclamation No. 7397, 66 Fed.Reg. 7354 (Jan. 22, 2001), under the authority of Section 2 of the Antiquities Act of 1906, 16 U.S.C. § 431. (Amend. Compl., Ex. 1 to Rule Decl.). The Monument is located approximately 60 miles southwest of Phoenix, Arizona and encompasses 496,377 acres of "untrammeled Sonoran desert landscape." (Id., ¶¶ 15-16, 20). The Monument was created to preserve and protect the functioning Sonoran desert ecosystem and diverse array of biological, scientific, and historic resources located within the Monument. (Id., Ex. 1 to Rule Decl.).

Proclamation No. 7397 states that the Secretary of the Interior must manage the Monument through the BLM to implement the purposes of the Proclamation and prepare a management plan that addresses the actions necessary to protect the objects identified in the Proclamation. 66 Fed.Reg. at 7356. The Proclamation also prohibits the BLM from renewing grazing permits on Federal lands within the Monument south of Interstate Highway 8, and provides that grazing north of Interstate 8 may be continued only to the extent that the BLM determines it is compatible with the purpose of protecting the objects identified in the Proclamation. Id.

Pursuant to the Proclamation, the BLM has closed most of the grazing allotments within the Monument south of Interstate 8; the remaining allotment was set to close on February 29, 2009. (Amend. Compl., ¶ 34). However, to date, the BLM has not completed a management plan for the Monument or made a determination as to whether grazing within the Monument north of Interstate 8 is compatible with protecting the Monument's natural and historic resources. (Id., ¶¶ 65, 69). In addition to failing to prepare a management plan or issue a grazing compatibility determination, the BLM has renewed grazing permits for five allotments in the northern portion of the Monument and continues to annually authorize grazing on these allotments, as well as on a sixth allotment whose permit was set to expire on February 28, 2009. (Dkt. #25, p. 5, Exhs. 1A-E).

B. 1998-2004 Congressional Appropriations Riders

In 1997, the Interior Board of Land Appeals decided that the BLM must prepare site-specific environmental analyses prior to authorizing grazing on allotments within Federal lands. National Wildlife Federation v. BLM, 140 IBLA 85 (1997). That ruling, along with a spike in grazing permit expirations (and subsequent changes to the BLM's policies for the renewal of such permits), resulted in a backlog of permit renewals. (Dkt. # 25-2, p. 3). As a result, starting in 1998, Congress began passing legislation in the form of yearly appropriations riders, which directed the BLM to renew, with the same terms and conditions, all grazing permits set to expire during the following fiscal year until the BLM completed processing of the permits in compliance with all applicable laws and regulations. Omnibus Consol. & Emergency Supplemental Appropriations Act, 1999, Pub.L. No. 105-277, § 124, 112 Stat. 2681, 2681-261 (1998); Consol. Appropriations Act, 2000, Pub.L. No. 106-112, § 123, 113 Stat. 1501, 1501A-159-60 (1999); Dep't of the Interior & Related Agencies Appropriations Act, 2001, Pub.L. No. 106-291, § 116, 114 Stat. 922, 943 (2000); Dep't of the Interior & Related Agencies Appropriations Act, 2002, Pub.L. No. 107-63, § 114, 115 Stat. 414, 438-39 (2001); Consol. Appropriations Resol., 2003, Pub.L. No. 108-7, § 328, 117 Stat. 11, 276-77 (2003).

Most recently, on November 10, 2003, Congress passed the Department of the Interior and Related Agencies Appropriations Act, 2004, which likewise directs the BLM to renew all grazing permits set to expire during fiscal years 2004-2008, with the same terms and conditions, until the BLM completes processing of the permits in compliance with all applicable laws and regulations. See Pub.L. No. 108-108, § 325, 117 Stat. 1241, 1308 (2004).

III. LEGAL STANDARD

The BLM moves to dismiss WWP's Amended Complaint for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1), or in the alternative, for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt.# 25-2, p. 5).

When a party moves to dismiss a complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) that party bears the burden of proof that the court has jurisdiction to decide the claim(s). Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("It is to be presumed that a cause lies outside [the court's] limited jurisdiction, [ ] and the burden of establishing the contrary rests upon the party asserting jurisdiction."); see also Thornhill Publ'n v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

On the other hand, "[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). To survive a motion to dismiss for failure to state a claim, the plaintiff must simply allege facts sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); see also Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999) ("A dismissal for failure to state a claim is appropriate only where it appears, beyond doubt, that the plaintiff can prove no set of facts that would entitle it to relief.").

In evaluating a motion to dismiss, "all well-pleaded allegations of material fact are...