LEGAL NACO APPEAL INTEVEOR RESPONSE BRIEF.pdf

8/20/2019 LEGAL NACO APPEAL INTEVEOR RESPONSE BRIEF.pdf

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No. 15-15620

_________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT _________________________

NEVADA ASSOCIATION OF COUNTIES, et al.,

Plaintiff-Appellant

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, et al.,

Defendant-Appellee

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,

Intervenors-Defendants-Appellees

_________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

_________________________

INTERVENOR-APPELLEE’SRESPONSE BRIEF

_________________________

William N. Lawton

Katherine A. Meyer

Meyer Glitzenstein & Eubanks

4115 Wisconsin Ave. NW, Ste. 210

Washington, DC 20016

(202) 588-5206

[email protected]

Counsel for Intervenors-Appellees

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 1 of 79


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RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Intervenor-

Defendant-Appellee American Wild Horse Preservation Campaign (“AWHPC”)

states that it has no parent corporations, and that it has no stock.



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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF ISSUES ....................................................................................... 1

ADDENDUM ............................................................................................................ 2

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 4

I. STATUTORY AND REGULATORY BACKGROUND ............................ 4

A.

The Wild Free-Roaming Horses And Burros Act ...................................... 4

B. The Taylor Grazing Act ............................................................................. 8

C.

The Administrative Procedure Act ............................................................ 9

II.

WILD HORSES IN NEVADA ...................................................................10

III.

PROCEEDINGS BELOW ..........................................................................11

ARGUMENT ...........................................................................................................18

INTRODUCTION ................................................................................................18

I. NACO MISSTATED THE STANDARD OF REVIEW. ..........................19

II. THE DISTRICT COURT PROPERLY DISMISSED NACO’S CLAIMS

UNDER THE APA. ....................................................................................22

A.

The District Court Correctly Found That NACO’s Amended ComplaintAsserted An Impermissible Programmatic Attack On BLM’s

Management Of Wild Horses In Nevada. ................................................22

B. The District Court Correctly Dismissed NACO’s Claims Under Section

706(2) Of The APA Because NACO Failed To Identify Any Justiciable

Final Agency Action. ...............................................................................31

C. The District Court Properly Dismissed NACO’s Claims Under Section

706(1) Of The APA Because NACO Failed To Identify Any Discrete,

Non-Discretionary Action That The Judiciary Has Authority ToCompel. ....................................................................................................39

III. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS’ DUE

PROCESS CLAIM. ....................................................................................48

IV. THE DISTRICT COURT CORRECTLY DISMISSED THE AMENDED

COMPLAINT WITH PREJUDICE. ...........................................................51



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CONCLUSION ........................................................................................................54

ORAL ARGUMENT REQUEST ............................................................................55

STATEMENT OF RELATED CASE .....................................................................55

CERTIFICATE OF COMPLIANCE .......................................................................56

PROOF OF SERVICE .............................................................................................57



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TABLE OF AUTHORITIES

CASES

Am. Horse Prot ection Ass’n, Inc. v. Frizzell ,

403 F. Supp. 1206 (D. Nev. 1975) ......................................................................40

Am. Horse Protection Ass’n, Inc. v. Watt ,

694 F.2d 1310 (D.C. Cir. 1982)...........................................................................40

Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ..............................................................................................49

Ascon Properties, Inc. v. Mobil Oil Co.,

866 F.2d 1149 (9th Cir. 1989) .............................................................................54

Ashcroft v. Iqbal ,

556 U.S. 662 (2009) ............................................................................... 19, 20, 53

Barnett v. US Air, Inc.,

228 F.3d 1105 (9th Cir. 2000) ...................................................................... 50, 51

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ................................................................... 19, 20, 38, 46, 53

Blixseth v. Yellowstone Mountain Club,

796 F.3d 1004 (9th Cir. 2015) .............................................................................53

Bradshaw v. United States,

47 Fed. Cl. 549 (Fed. Cl. 2000) ...........................................................................50

Colo. Wild Horse and Burro Coal., Inc. v. Salazar ,

639 F. Supp. 2d 87 (D.D.C. 2009)......................................................................... 7



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Colvin Cattle Co. v. United States,

468 F.3d 803 (Fed. Cir. 2006) .............................................................................49

Conley v. Gibson,

355 U.S. 41 (1957) ..............................................................................................20

Daniels- Hall v. National Educ. Ass’n,

629 F.3d 992 (9th Cir. 2010) .................................................................. 21, 44, 47

Dep’t of Transp. v. Pub. Citizen,

541 U.S. 752 (2004) ............................................................................................43

Dream Palace v. County of Maricopa,

384 F.3d 990 (9th Cir. 2003) ...............................................................................24

Eminence Capital, LLC v. Aspeon, Inc.,

316 F.3d 1048 (9th Cir. 2003) ...................................................................... 52, 53

Fallini v. Hodel ,

783 F.2d 1343 (9th Cir. 1986) .............................................................................46

Fallini v. United States,

56 F.3d 1378 (Fed. Cir. 1995) .............................................................................50

FDIC v. Garner ,

126 F.3d 1138 (9th Cir. 1997) ...................................................................... 18, 51

Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ............................................................................................39

Fund for Animals v. U.S. Bureau of Land Management ,

357 F. Supp. 2d 225 (D.D.C. 2004) ....................................................................37



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Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

460 F.3d 13 (D.C. Cir. 2006) ....................................................................... passim

Grant School Dist. No. 3 v. Dombeck ,

126 Fed. Appx. 823 (9th Cir. 2005) ....................................................................54

In Def. of Animals v. U.S. Dep’t. of Interior ,

909 F. Supp. 2d 1178 (E.D. Cal. 2012) ...........................................................6, 44

In Def. of Animals v. U.S. Dep't of Interior,

751 F.3d 1054 (9th Cir. May 12, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . .6, 40, 44

Institute for Wildlife Protection v. Norton,

205 Fed. Appx. 483 (9th Cir. 2006) ............................................................. 23, 54

Leigh v. Jewell ,

No. 3:11-cv-00608, 2014 WL 31675 (D. Nev. Jan. 3, 2014) ..............................26

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................................................................36

Lujan v. National Wildlife Federation,

497 U.S. 871 (1990) .................................................................................... passim

Maya v. Centex Corp.,

658 F.3d 1060 (9th Cir. 2011) .............................................................................21

McCalla v. Royal MacCabees Life Ins. Co.,

369 F.3d 1128 (9th Cir. 2004) .............................................................................30

Mountain States Legal Foundation v. Hodel ,

799 F.2d 1423 (10th Cir. 1986) ...........................................................................50



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Norton v. Southern Utah Wilderness Alliance

542 U.S. 55 (2004) ...................................................................................... passim

Neitzke v. Williams,

490 U.S. 319 (1989) ............................................................................................52

ONRC Action v. Bureau of Land Management ,

150 F.3d 1132 (9th Cir. 1998) ...................................................................... 23, 54

Revis v. Slocomb Industries, Inc.,

765 F. Supp. 1212 (D. Del. 1991) .......................................................................19

Salameh v. Tarsadia Hotel ,726 F.3d 1124 (9th Cir. 2013) ...................................................................... 21, 54

San Luis Unit Food Producers v. United States,

709 F.3d 798 (9th Cir. 2013) ............................................................ 33, 40, 45, 54

Seattle Sch. Dist., No. 1 v. B.S.,

82 F.3d 1493 (9th Cir. 1996) ...............................................................................51

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) ..............................................................................................29

Sierra Club v. Peterson,

228 F.3d 559 (5th Cir. 2000) ...............................................................................32

Sierra Forest Legacy v. Sherman,

646 F.3d 1161 (9th Cir. 2011) .............................................................................32

Stout v. U.S. Forest Service,

869 F. Supp. 2d 1271 (D. Or. 2012) ....................................................................44



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Terenkian v. Republic of Iraq,

694 F.3d 1122 (9th Cir. 2012) .............................................................................21

United States v. 14.02 Acres of Land More or Less in Fresno County,

547 F.3d 943 (9th Cir. 2008) ...............................................................................10

United States v. Fuller ,

409 U.S. 488 (1973) .............................................................................................. 9

United States v. Oakar ,

111 F.3d 146 (D.C. Cir. 1997).............................................................................30

White v. Lee,

227 F.3d 1214 (9th Cir. 2000) .............................................................................21

Wild Fish Conservancy v. Jewell ,

730 F.3d 791 (9th Cir. 2013) ...............................................................................54

Willow Creek Ecology v. U.S. Forest Service,

225 F. Supp. 2d 1312 (D. Utah 2002) .................................................................40

Zixiang Li v. Kerry,

710 F.3d 995 (9th Cir. 2013) ...............................................................................38

STATUTES

5 U.S.C. § 551(13) ...................................................................................................32

5 U.S.C. § 706(1) ............................................................................................. passim

5 U.S.C. § 706(2) ............................................................................................. passim

16 U.S.C. §§ 1331 – 1340 ................................................................................... 1, 4, 5



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16 U.S.C. § 1332(f) .................................................................................................... 7

16 U.S.C. § 1333(a) ......................................................................................... passim

16 U.S.C. § 1333(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6, 42

16 U.S.C. § 1333(b)(2)..................................................................................... passim

16 U.S.C. § 1334 ..................................................................................................8, 46

28 U.S.C. § 2401(a) .................................................................................................35

42 U.S.C. §§ 4321-4370 ............................................................................................ 6

43 U.S.C. § 1712(a) ................................................................................................... 5

43 U.S.C. § 315b ..................................................................................................9, 49

43 U.S.C. § 315f ......................................................................................................... 9

RULES

Federal Rule of Appellate Procedure 26.1 ................................................................. i

Federal Rule of Appellate Procedure 28(d) ............................................................... 2

Federal Rule of Appellate Procedure 30-1.7 ............................................................. 3

Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) .............................................56

Federal Rule of Appellate Procedure 32(a)(7)(C) ...................................................56

Federal Rule of Civil Procedure 12(b)(1) ............................................... 3, 13, 21, 54



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Federal Rule of Civil Procedure 12(b)(6) ............................................... 3, 13, 21, 54

Federal Rule of Civil Procedure 12(c) .................................................................3, 13

Federal Rule of Civil Procedure 15(a)(1) ................................................................14

Ninth Circuit Rule 32-1............................................................................................56

REGULATIONS

40 C.F.R. § 1502.14(a) ............................................................................................... 6

43 C.F.R. § 4700.0-2 .................................................................................................. 5

43 C.F.R. § 4700.0-5(d) ............................................................................................. 6

43 C.F.R. § 4710.1 ..................................................................................................... 6

43 C.F.R. § 4710.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..6

43 C.F.R. § 4710.3-1 .................................................................................................. 6

43 C.F.R. § 4710.5 ...................................................................................................36

43 C.F.R. § 4710.5(a) ...................................................................................... 8, 9, 43

43 C.F.R. § 4720.2-1 ............................................................................................8, 46



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STATEMENT OF ISSUES

1.

Whether the district court was correct to dismiss a case brought by a

consortium of livestock grazing organizations against the Bureau of Land

Management (“BLM”) to compel the agency to completely revamp its entire

program for managing wild horses and burros throughout Nevada under the Wild

Free Roaming Horses and Burros Act (“Wild Horse Act” or “WHA”), 16 U.S.C. §

1331 – 1340, when the district court found that the case was a programmatic

challenge foreclosed by the Supreme Court’s decisions in Lujan v. National

Wildlife Federation, 497 U.S. 871 (1990), and Norton v. Southern Utah Wilderness

Alliance (“SUWA”), 542 U.S. 55 (2004)?

2. Whether the district court correctly dismissed Plaintiffs’ claims under

section 706(2) of the APA, which provides that a reviewing court shall set aside

“agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,” 5 U.S.C. § 706(2), when the district court found that

Plaintiffs had failed to challenge any specific final agency action by the BLM or

explain how any final agency action had harmed any Plaintiff?

3. Whether the district court correctly dismissed Plaintiffs’ claims under

section 706(1) of the APA, which provides that a reviewing court shall “compel

agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1),



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when the district court found that Plaintiffs had failed to identify any non-

discretionary, ministerial duty that BLM had failed to carry out?

4. Whether the district court properly dismissed Plaintiffs’ Amended

Complaint with prejudice when, before Plaintiffs filed their Amended Complaint,

the Intervenor-Appellant had moved to dismiss the case precisely because Lujan

and SUWA bar the programmatic challenge Plaintiffs attempted to bring, yet when

Plaintiffs filed the Amended Complaint they failed to cure any of the defects in the

original Complaint?

ADDENDUM

Pertinent statutory and regulatory provisions appear in an Addendum.

STATEMENT OF THE CASE

This appeal concerns a sweeping challenge to the BLM’s entire program for

protecting and managing wild horses throughout Nevada brought by a consortium

of grazing interests led by the Nevada Association of Counties (“NACO”).1

Alleging pervasive failures to properly implement the Wild Horse Act, NACO

sought a declaratory judgment broadly “declaring the duties and responsibilities of

[BLM] under the [WHA] and applicable rules, regulations, and directives,”

requested an injunction “requiring [BLM] to promptly and fully comply with all

1 Pursuant to Fed. R. App. P. 28(d), this brief refers to parties by name. For

brevity, the brief refers to Appellants as “NACO” unless greater specificity isnecessary.



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provisions of the [WHA]” and to “[a]dhere to multiple use principles,” and further

asked the district court to “retain jurisdiction to monitor and enforce compliance.”

Am. Compl. ¶¶ 93 – 95, ER 67 – 68. As the district court properly found, NACO

“essentially ask[ed] the [court] to compel compliance with the [WHA] and

refashion [BLM’s] management of wild horses and burros in Nevada.” Dist. Ct. at

7, ER 7.

Intervenor-Appellee-Defendant American Wild Horse Preservation

Campaign (“AWHPC”) filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6), and because its Proposed Answer had been filed

with its motion to intervene, alternatively moved for a judgment on the pleadings

under Rule 12(c), asserting that NACO’s Complaint was an impermissible

programmatic challenge to BLM’s administration of the WHA under both Lujan,

497 U.S. at 891 – 94, and SUWA, 555 U.S. at 64. Mem. in Supp. Mot. to Dismiss,

Docket Entry 38 (hereinafter “MTD”), AISER 7– 38.2 BLM and another

Defendant-Intervenor filed similar motions to dismiss. Dist. Ct. at 2, ER 2. After

requesting a “stay” of AWHPC’s motion to dismiss on the grounds that it would be

filing an amended complaint that would render resolution of that motion

“unnecessary,” AISER 5, NACO eventually filed an Amended Complaint that did

2 As permitted by Fed. R. App. P. 30-1.7, AWHPC has filed supplemental excerpts

of record. To distinguish these from any excerpts of record filed by other parties,

AWHPC cites its supplemental excerpts as AISER, for Appellee-Intervenor’sSupplemental Excerpts of Record.



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not address any of the grounds for AWHPC’s motion to dismiss. ER 79. The

district court subsequently granted AWHPC’s motion, held that the other parties’

motions to dismiss were moot, and dismissed the case with prejudice.

STATEMENT OF FACTS

To place AWHPC’s arguments in context, it is important to discuss not only

the statutory and regulatory provisions that apply here, but also to provide a

detailed history of the litigation that occurred in the district court.

I.

STATUTORY AND REGULATORY BACKGROUND

A. The Wild Free-Roaming Horses And Burros Act

Congress enacted the WHA in 1971, proclaiming that wild horses are “living

symbols of the rugged independence and tireless energy of our pioneer heritage”

and “a national esthetic resource.” S. Rep. No. 92-242, at 1 (1971). Congress

further declared that wild free-roaming horses and burros “contribute to the

diversity of life forms within the Nation and enrich the lives of the American

people.” 16 U.S.C. § 1331. Thus, Congress sought to guarantee that “wild free-

roaming horses and burros shall be protected from capture, branding, harassment,

[and] death,” and “be considered in the area where presently found, as an integral

part of the natural system of the public lands.” Id. (emphasis added).



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The WHA directs the Secretary of the Department of Interior, through BLM,

“to protect and manage wild free-roaming horses and burros as components of the

public lands.” 16 U.S.C. § 1333(a); id. § 1331 (stating that the animals “are to be

considered . . . as an integral part of the natural system of the public lands”); 43

C.F.R. §§ 4700.0-2 (instructing BLM to manage wild horses and burros “under the

principle of multiple use”). As a result, BLM must consider protection of wild

horses when preparing or amending Resource Management Plans (“RMPs”) under

the Federal Land Policy Management Act (“FLPMA”). See 43 U.S.C. § 1712(a)

(requiring RMPs for public lands); see also BLM, Wild Horses and Burros

Management Handbook H-4700-1, Rel. 4-116, at 7-8 (June 2010) (“ BLM

Handbook ”) (requiring consideration of wild horses when formulating land use

plans).3

The WHA further mandates that the Secretary “shall manage wild free-

roaming horses and burros in a manner that is designed to achieve and maintain a

thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). To

achieve this directive, the WHA provides that the Secretary “shall maintain a

current inventory of wild free-roaming horses and burros on given areas of public

3 BLM’s Handbook is available at

http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf .



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lands,” id . § 1333(b)(1), which BLM does for individual herd management areas

(“HMA”). 43 C.F.R. §§ 4710.2, 4710.3-1; BLM Handbook at 30 – 35.

BLM establishes HMAs “for the maintenance of wild horse and burro

herds,” 43 C.F.R. § 4710.3-1, based on the geographic areas that wild horses used

when Congress enacted the WHA in 1971. 43 C.F.R. § 4700.0-5(d). BLM

designates and modifies HMAs when preparing RMPs. 43 C.F.R. § 4710.1; BLM

Handbook at 7 – 8. HMAs are also subject to Herd Management Area Plans

(“HMAP”). 43 C.F.R § 4710.3-1; BLM Handbook at 36 – 43.

BLM sets an appropriate management level (“AML”) for each HMA

through a planning process that requires public notice and comment, as well as

compliance with the National Environmental Policy Act (“NEPA”) (42 U.S.C. §§

4321-4370), which requires all agencies to examine the environmental impacts of

their decisions and to “[r]igorously explore” alternative actions that would have

less adverse impacts, 40 C.F.R. § 1502.14(a). BLM Handbook at 18. These

“AMLs are determined through revisions to the applicable [RMP].” In Def. of

Animals v. U.S. Dep’t. of Interior , 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012),

aff’d , 751 F.3d 1054 (9th Cir. May 12, 2014).

Because the WHA requires that “[a]ll management activities shall be at the

minimal feasible level,” 16 U.S.C. § 1333(a), BLM aims to maintain a “thriving

natural ecological balance” on the public range, id., by, in part, expressing AMLs



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“as a population range within which [wild horses] can be managed for the long

term” in a given HMA. BLM Handbook at 16 – 17. Local BLM offices “have

significant discretion to determine their own methods of computing AML[s] for the

herds they manage.” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460

F.3d 13, 16 (D.C. Cir. 2006). Thus, as the Supreme Court observed in SUWA, the

WHA provides BLM with a “broad statutory mandate” to carry out its duties under

the WHA. 542 U.S. at 66 – 67.

The WHA further directs BLM to manage wild horses by removing “excess”

animals from public lands, but only after BLM determines that (1) “an

overpopulation [of wild horses] exists on a given area of the public lands” and (2)

“action is necessary” to remove such animals. 16 U.S.C. § 1333(b)(2); see also

Colo. Wild Horse and Burro Coal., Inc. v. Salazar , 639 F. Supp. 2d 87, 98 (D.D.C.

2009) (noting that “[a] prerequisite to removal under the [WHA] is that BLM first”

make an excess determination). Thus, the WHA defines “excess animals” as those

wild horses that BLM formally determines “must be removed from an area in order

to preserve and maintain a thriving natural ecological balance and multiple-use

relationship in that area.” 16 U.S.C. § 1332(f).

In addition to removing “excess” wild horses from public lands, BLM has

discretion to “close appropriate areas of the public lands to grazing use by all or a

particular kind of livestock” if “necessary to provide habitat for wild horses.” 43



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C.F.R. § 4710.5(a). BLM may also close public lands to grazing permanently or

temporarily “[a]fter appropriate public consultation,” id. § 4710.5(c), which entails

a “site-specific environmental analysis and issuance of a proposed and final

decision.” BLM Handbook at 9. Once that process has been completed, BLM

must then issue a formal “Notice of Closure” to the “affected and interested

parties.” 43 C.F.R. § 4710.5(c).

In addition to vesting BLM with authority and discretion to manage wild

horses on public lands, section 4 of the WHA also protects wild horses that stray

onto private lands. 16 U.S.C. § 1334. Thus, landowners may not remove or kill

such horses. Id. Instead, a landowner may inform BLM that wild horses have

strayed onto its private land, and BLM “shall arrange to have the animals

removed.” Id. To trigger this requirement, a landowner must provide a “written

request” to BLM indicating “the numbers of wild horses or burros, the date(s) the

animals were on the land, legal description of the private land, and any special

conditions that should be considered . . . .” 43 C.F.R. § 4720.2-1. After BLM

receives that request, it will arrange to remove wild horses from such private lands

“as soon as practicable.” Id.

B. The Taylor Grazing Act

Under the Taylor Grazing Act (“TGA”), 43 U.S.C. §§ 315-315r, the

Secretary of the Interior, through BLM, is “authorized” to issue permits for the



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grazing of livestock on public lands “upon the payment . . . of reasonable fees.” 43

U.S.C. § 315b. However, as the statute’s text specifies, “the creation of a grazing

district or the issuance of a [grazing] permit . . . shall not create any right, title,

interest, or estate in or to” public lands. Id. § 315b (emphasis added); see also

United States v. Fuller , 409 U.S. 488, 494 (1973) (“The provisions of the [TGA] . .

. make clear the congressional intent that no compensable property right be created

in the permit lands themselves as a result of the issuance of the permit.”) (emphasis

added). The TGA further provides that the Secretary “is authorized, in his

discretion, to . . . classify any lands . . . within a grazing district” as “more valuable

or suitable for any other use,” 43 U.S.C. § 315f (emphasis added), including use

by wild horses. 16 U.S.C. § 1333(a); see also 43 C.F.R. § 4710.5(a) (stating that

BLM may prohibit grazing on the public lands where necessary to protect wild

horses).

C. The Administrative Procedure Act

The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 – 706, provides

for judicial review of administrative agencies’ actions and failures to act. Pursuant

to section 706(2) of the APA, “the reviewing court shall . . . hold unlawful and set

aside agency action, findings and conclusions found to be . . . arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).



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Under section 706(1), “the reviewing court shall . . . compel agency action

unlawfully withheld or unreasonably delayed.” Id. § 706(1).

II.

WILD HORSES IN NEVADA

Nevada is home to roughly half of the nation’s wild horses and burros. Am.

Compl. ¶ 44, ER 48. These horses and burros live in eighty-five different HMAs

throughout the state, which encompass over 14 million acres of BLM-managed

public lands. Ranchers use these same public lands to graze livestock at below-

market, taxpayer-subsidized rates. Despite the fact that grazing permits create no

right or title to public lands, these ranchers view wild horses as unwanted

competition for the limited forage and water on public lands in Nevada. E.g., Am.

Compl. ¶¶ 46 – 47, 67 – 69, ER 50 – 51, 58 – 60.4

4 See U.S. Dept. Of Interior, BLM, Herd Area and Herd Management AreaStatistics FY 2013, at 18-22, available at

http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.File.dat/HMA_HA%20Stats%20FY2013.pdf (describing HMAs including those in

Nevada); see also Carol Hardy Vincent, Cong. Research Serv., RS21232, Grazing

Fees: Overview And Issues at 1 (2012), available at ,

https://www.fas.org/sgp/crs/misc/RS21232.pdf (noting that BLM charges below-

market fees for grazing permits and generally spends more money subsidizinggrazing than it receives from grazing fees). See also United States v. 14.02 Acres

of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (notingthat a court may properly take judicial notice of “records and reports of

administrative bodies” without abusing its discretion or converting a Rule 12

motion into a motion for summary judgment).



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Not surprisingly, Plaintiffs contend that Nevada contains too many wild

horses competing for grazing and water resources with their livestock.

Accordingly, on September 18, 2012, Plaintiff NACO sent a letter to Kenneth

Salazar — then Secretary of the Department of Interior —outlining “continuing

problems, failures to act, inappropriate actions, and delays to act of Defendants and

their predecessors with respect to the [WHA].” Id . ¶ 53, ER 52. When Secretary

Salazar failed to respond to this letter “for an extended period of time,” on January

22, 2013 NACO sent a second letter “strongly urg[ing] [his] office to take steps to

bring BLM into compliance with the provisions of the [WHA].” Id . ¶ 54, ER 53.

On April 23, 2013, Edwin Roberson, BLM’s Assistant Director of

Renewable Resources and Planning, responded to NACO’s letter inviting “NACO

to meet with BLM’s senior leadership to collaborate on viable program solutions

that would meet NACO’s concerns.” Id . ¶ 55, ER 53 – 54. Almost three months

later, NACO allegedly accepted the invitation to meet with BLM, but as of the

filing of the Amended Complaint, this meeting had not yet taken place. Id . ¶ 56,

ER 54.

III.

PROCEEDINGS BELOW

On December 30, 2013, NACO filed a Complaint challenging BLM’s entire

program for the management of wild horses in Nevada and broadly alleging that

BLM has failed to properly implement the WHA throughout the state. ER 74.



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Additionally, the Complaint alleged that BLM had violated Plaintiffs’ due process

rights. Id . On April 2, 2014, the district court granted AWHPC’s motion to

intervene, and on May 29, 2014, AWHPC filed a motion to dismiss.5 ER 77 – 78,

MTD, AISER 7 – 38.

AWHPC’s motion to dismiss detailed numerous problems with the

Complaint, explaining that it directly conflicted with the holdings of Lujan, 497

U.S. at 891 – 94, and SUWA, 542 U.S. at 67. See MTD 8 – 24, AISER 21 – 37.

Specifically, AWHPC’s motion explained that under Lujan, federal courts may

review only “final agency actions” under section 706(2) of the APA, and that the

Complaint had failed to identify any such final agency action. MTD 10, AISER 22

(citing Lujan, 497 U.S. at 894). Similarly, AWHPC’s motion noted that SUWA

held that pursuant to section 706(1) of the APA courts may compel only “discrete,”

“non-discretionary” agency duties, and explained that the Complaint had failed to

identify any such non-discretionary duty. Id. at 19 (citing SUWA, 542 U.S. at 64).

AWHPC’s motion further explained that the Supreme Court has firmly established

that litigants may not seek “wholesale improvement [of an agency’s administration

of a law] by court decree, rather than in the offices of the [agency] or the halls of

5 AWHPC and the other Intervenor-Defendants are advocates for the preservationand well-being of wild horses and burros. As the district court found, they have a

“significant protectable interest in preserving these wild animals under the Wild

Horse Act and other federal laws and regulations.” Order Granting Intervention,April 2, 2014, Docket Entry 29, at 6, AISER 40.



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Congress, where programmatic improvements are normally made.” Id. at 1

(quoting Lujan, 497 U.S. at 891 (emphasis in original)); see also SUWA, 542 U.S.

at 64 – 65 (reiterating this standard and explaining that it also applies to claims

under section 706(1) of the APA). Finally, AWHPC explained that the Plaintiffs

had failed to allege a viable due process claim because they failed to allege a

protected property interest, or to identify any process to which the Plaintiffs were

due, let alone any process of which they were deprived. MTD at 25, AISER 37.

Thus, AWHPC provided detailed explanations for why each claim in the

Complaint was legally deficient under all of the governing case law.6

Instead of filing a response to AWHPC’s motion to dismiss, on June 5, 2014

NACO filed a motion to stay AWHPC’s motion on the grounds that it intended to

file an amended complaint that would render a decision on AWHPC’s motion

“unnecessary.” AISER 5. On June 17, 2014, NACO filed a motion to amend its

complaint, with a proposed Amended Complaint attached. ER 78. The proposed

Amended Complaint added two additional Plaintiffs but did not address any of the

6 AWHPC filed its motion to dismiss under Federal Rule of Civil Procedure12(b)(1) for lack of subject matter jurisdiction, and alternatively under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim. See MTD at 2 n.1,AISER 14. In addition, because AWHPC had been required to file a proposed

Answer with its motion to intervene, AWHPC also made clear that, if necessary,

its motion could also be considered one for judgment on the pleadings pursuant toFederal Rule of Civil Procedure 12(c). See id.



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defects AWHPC had painstakingly identified in its motion to dismiss.

Consequently, on June 26, 2014 AWHPC renewed its motion to dismiss. Id.

Again, instead of filing a response to AWHPC’s motion to dismiss, on July

8, 2014, NACO requested a further extension of time to respond. Id. The district

court granted that motion the next day, requiring NACO to respond to AWHPC’s

motion to dismiss by August 15, 2014 and indicating that it would not allow any

further extensions of time. ER 79. In the same Order, the district court granted

NACO’s motion to file its Amended Complaint on the grounds that pursuant to

Federal Rule of Civil Procedure 15(a)(1), NACO had the right to file an amended

complaint without leave of the court. Id. Nevertheless, NACO did not actually file

its Amended Complaint until July 21, 2014. Id.

Thus, by the time it actually filed its Amended Complaint, NACO had

AWHPC’s motion to dismiss— which detailed the fatal defects in the original

Complaint — for nearly two months. Nevertheless, the Amended Complaint that

was finally filed merely added two more Plaintiffs and did not address any of the

numerous pleading defects that AWHPC had identified.

On the contrary, the Amended Complaint carried forward NACO’s broad,

programmatic attack on BLM’s entire program for the management of wild horses

in Nevada. Thus the Amended Complaint included general examples of entire

categories of alleged agency misbehavior, such as basing decisions on “ political



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considerations and their own preferences,” Am. Compl. ¶ 79, ER 62 – 63; making

improper and allegedly “unscientific” population surveys and determinations

regarding AMLs, the presence or absence of excess horses, and whether to remove

horses, id. ¶¶ 35 – 38, 41, 80, ER 44 – 47, 63; decisions to reduce or suspend grazing

on public lands, id. ¶¶ 12(b), 43, ER 30 – 31, 48; and the “willful failure to sell or

destroy” horses, instead sending them to long-term holding, id. ¶¶ 30, 62, ER 42 –

43, 56 – 57. Similarly, the Amended Complaint repeated the original Complaint’s

request for programmatic relief, requesting a declaratory judgment “declaring the

duties and responsibilities of [BLM] under the [WHA],” and an injunction

requiring BLM “to promptly and fully comply with all the provisions of the Act,”

as well as requesting that the district court “retain jurisdiction in order to monitor

and enforce [BLM’s] compliance” with the WHA. Am. Compl. ¶¶ 93 – 94, ER 67 –

68. In short, the Amended Complaint repeated NACO’s original invitation for the

district court to take on the role of manager of wild horses in Nevada.

On March 12, 2015, after full briefing by the parties, the district court

granted AWHPC’s motion to dismiss, r easoning that the Amended Complaint

failed to identify any actions unlawfully withheld or any final agency actions that

harmed any Plaintiff, and instead brought only an impermissible programmatic

attack of the kind that was barred by Lujan. Dist. Ct. 6 – 8, ER 6 – 8. Although the

district court “recognize[d] that it may be frustrating for Plaintiffs to identify final



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agency actions for review when they are concerned with Federal Defendants’

allegedly ‘consistent, persistent, [and] significant’ missteps under the Wild Horse

Act,” it nevertheless explained that “‘this is the traditional, and remains the normal,

mode of operation of the courts.’” Dist. Ct. at 8, ER 8 (citing Lujan v. National

Wildlife Federation, 497 U.S. 871, 894 (1990)). In light of all the circumstances of

the litigation, the district court dismissed the case with prejudice.

SUMMARY OF ARGUMENT

1.

The district court correctly found that NACO’s challenge was an

impermissible programmatic attack on BLM’s administration of the Wild Horse

Act throughout the state of Nevada that is foreclosed by Lujan, 497 U.S. at 891 –

94, and, as demonstrated below, is further barred by SUWA, 542 U.S. at 64 – 65.

Seeking nothing less than a complete overhaul and continuous oversight of BLM’s

management of wild horses, NACO essentially invited the district court to supplant

BLM as the manager of wild horses throughout the state. Following clearly

applicable Supreme Court precedents barring such programmatic attacks, the

district court correctly declined NACO’s invitation and dismissed the case.

2.

The district court also correctly found that NACO entirely failed to

challenge any “final agency action,” as required under section 706(2) of the APA

and the Supreme Court’s teaching in Lujan, 497 U.S. at 891 – 894. Although



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NACO broadly alleged rampant violations of the WHA, it never identified a single

final agency action that has caused injury to any Plaintiff. Hence, because courts

may review only final agency actions under the APA, the district court correctly

dismissed NACO’s claims under section 706(2) of the APA.

3. The district court also properly determined that NACO wholly failed

to identify any discrete, mandatory agency action that BLM has failed to take,

which is required under section 706(1) of the APA and the Supreme Court’s ruling

in SUWA, 542 U.S. at 65 – 67. Although NACO broadly alleged widespread

failures to “properly” implement the WHA, NACO fatally misconstrued the WHA,

which, as the Supreme Court observed in SUWA, vests BLM with “broad”

statutory authority to manage wild horses, 542 U.S. at 67. Because NACO failed

to identify any non-discretionary, ministerial duty that BLM has failed to carry out,

the district court correctly dismissed NACO’s claims under section 706(1) of the

APA.

4. The district court also correctly dismissed NACO’s allegation of due

process violations, which, as the district court found, was inextricably linked to its

fatally flawed APA claims. Additionally, the district court correctly found that

NACO failed to identify any protected property interest held by any Plaintiff or to

explain what process any Plaintiff was due but denied.



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5. Finally, although by failing to actually include an argument on this

issue NACO has waived it here, see FDIC v. Garner , 126 F.3d 1138, 1145 (9th

Cir. 1997), under the circumstances of this particular case, the district court also

properly dismissed NACO’s claims with prejudice. Moreover, any amendment

would have been entirely futile because clear Supreme Court precedents bar

NACO’s programmatic challenge. While NACO is free to file another case should

there come a time when it, or any other Plaintiff, is actually injured by a discrete

agency action or failure to comply with a non-discretionary duty, because neither

its original Complaint nor its Amended Complaint included any such allegations,

the district court properly dismissed this case with prejudice.

ARGUMENT

Introduction

NACO essentially argued that BLM lets wild horses run rampant throughout

Nevada in dereliction of the agency’s purported duties under the WHA. E.g. Op.

Br. at 20 (arguing that BLM’s putative mismanagement of wild horses “impos[es]

a disproportionate share of the ecological, economic, and other impacts of excess

[horse] populations on Nevada’s resources”). However, because the WHA

provides no free-standing cause of action, NACO brought its claims under the

APA, claiming that it was entitled to relief under both sections 706(1) and 706(2)

of the APA. E.g., Op. Br. at 6 – 9.



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However, as discussed more fully below, NACO’s case cannot go forward

because NACO failed to bring a viable claim under either section of the APA.

Thus, under binding Supreme Court precedent, claims under section 706(2) may

proceed only where a plaintiff challenges final agency action. Lujan, 497 U.S. at

894. Similarly, claims under section 706(1) may proceed only where a plaintiff

identifies a discrete action an agency is required to take. SUWA, 542 U.S. at 64.

Because NACO failed to identify either a final agency action or any non-

discretionary duty, and instead tried to levy a broad, programmatic attack on the

way BLM manages wild horses in Nevada — a quintessential example of the type

of challenge the Supreme Court has repeatedly confirmed the judiciary has no

authority to consider —the district court properly dismissed NACO’s claims.

I.

NACO MISSTATED THE STANDARD OF REVIEW.

To begin with, NACO misstated the standard of review applicable here,

asserting that “[a] motion to dismiss cannot be granted unless it appears beyond a

reasonable doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Op. Br. at 38. In support, NACO cites Revis v.

Slocomb Industries, Inc., 765 F. Supp. 1212, 1213 (D. Del. 1991), which not only

is non-binding on this Court, but also pre-dates important, contrary Supreme Court

rulings. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v.

Iqbal , 556 U.S. 662 (2009). In reality, NACO’s “no set of facts” language derives



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from Conley v. Gibson, 355 U.S. 41, 45 – 46 (1957), which, after Twombly, simply

is no longer the applicable standard. See Twombly, 550 U.S. at 561 – 63 (noting that

this particular phrase “has earned its retirement” and “is best forgotten”).

Indeed, the Supreme Court has expressly disclaimed the notion that “a

wholly conclusory statement of a claim would survive a motion to dismiss

whenever the pleadings left open a possibility that a plaintiff might later establish

some set of undisclosed facts to support recovery.” Id. at 561. Unfortunately for

NACO, it entirely ignored these admonitions when drafting its two Complaints and

in its briefing to the district court and this Court, instead insisting that it was

sufficient for the Complaint to make only broad, general allegations. See Op. Br.

at 15, 18, 26 (asserting that the Complaint contained sufficient allegations because

other relevant facts could be produced later through an “evidentiary showing”).

Thus, it is now well established that a complaint must state “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570

(emphasis added); see also Iqbal , 556 U.S. at 678 (“To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.”). Therefore, although courts

accept as true “well- pleaded allegations of material fact,” they are not obligated to

accept as true “allegations that contradict . . . matters properly subject to judicial

notice, or allegations that are merely conclusory, unwarranted deductions of fact,



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or unreasonable inferences.” Daniels- Hall v. National Educ. Ass’n, 629 F.3d 992,

998 (9th Cir. 2010).

Moreover, because this Court reviews a motion to dismiss de novo, this

Court may affirm a district court’s ruling “on any proper ground, even if the

district court did not reach the issue or relied on different grounds or reasoning.”

Salameh v. Tarsadia Hotel , 726 F.3d 1124, 1129 (9th Cir. 2013); see also White v.

Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (noting that courts review dismissals for

lack of subject matter jurisdiction de novo). Accordingly, this Court may affirm

the district court’s ruling if it finds that the Amended Complaint fails either to

establish subject matter jurisdiction under FRCP 12(b)(1) or fails to state a claim

under FRCP 12(b)(6). See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th

Cir. 2012) (applying the Supreme Court’s “plausible” pleading requirement to a

motion to dismiss for lack of subject matter jurisdiction; Salameh, 726 F.3d at

1129 (applying the same standard to a motion under Rule 12(b)(6)).7

7 Although one panel of this Court found Twombly “ill-suited to application in the

constitutional standing context” in response to a motion to dismiss under Rule12(b)(1), as opposed to the 12(b)(6) context,” Maya v. Centex Corp., 658 F.3d

1060, 1067 (9th Cir. 2011), this holding has no relevance here because this Court

may affirm the district court’s ruling under either FRCP 12(b)(1) or FRCP12(b)(6).



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II.

THE DISTRICT COURT PROPERLY DISMISSED NACO’S

CLAIMS UNDER THE APA.

A.

The District Court Correctly Found That NACO’s Amended

Complaint Asserted An Impermissible Programmatic AttackOn BLM’s Management Of Wild Horses In Nevada.

As the district court correctly held, NACO’s “argument for program-wide

changes to [BLM’s] management of wild horses” throughout Nevada was merely a

“programmatic attack” that the judiciary lacks jurisdiction to resolve under the

APA. Dist. Ct. at 6 – 8, ER 6 – 8. In Lujan the Supreme Court explained that the

APA does not allow lawsuits to “seek wholesale improvement of [an

administrative] program by court decree, rather than in the offices of the [agency]

or the halls of Congress, where programmatic improvements are normally made.”

497 U.S. at 891 (emphasis in original). Instead, under the APA, federal courts may

“intervene in the administration of the laws only when, and to the extent that, a

specific ‘final agency action’ is at issue.” Id. at 894. Thus, section 706(2) of the

APA allows courts to review particular final agency actions, but does not allow

courts to conduct a generalized review of an agency’s implementation of a broad

statutory mandate. See id. at 891 – 94. Thus, the Supreme Court made clear in

Lujan that federal courts do not have jurisdiction to review generic programmatic

challenges to an agency’s implementation of a statute, as opposed to a “particular”

final agency action. Id . Similarly, the Court confirmed in SUWA that “[t]he



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prospect of pervasive oversight by federal courts over the manner and pace of

agency compliance with [broad] congressional directives is not contemplated by

the APA.” 542 U.S. at 67. Therefore, the Supreme Court has twice held that

programmatic attacks on agencies’ implementation of congressional mandates are

simply not justiciable under the APA.

Although NACO ignored Lujan entirely in its briefing before the district

court, its opening brief to this Court made two feeble attempts to distinguish the

Supreme Court’s directly applicable holding— neither of which has any merit.

First, NACO wrongly asserted that because Lujan was before the Court on a

motion for summary judgment, its holding does not apply. Op. Br. at 34 – 35.

However, Lujan’s holding that plaintiffs must identify some “final agency action”

in order to present a justiciable claim under the APA clearly applies at either stage

of litigation. The only significance of the stage of litigation concerns the

Plaintiffs’ burden to prove their claims: while Plaintiffs must certainly prove their

allegations to survive a motion for summary judgment, that obligation does not

relieve Plaintiffs of their separate duty to plead sufficiently justiciable claims to

survive a motion to dismiss. Indeed, this Court has readily applied Lujan to affirm

motions to dismiss cases. See, e.g., ONRC Action v. Bureau of Land Management ,

150 F.3d 1132, 1136, 1140 (9th Cir. 1998) (affirming a dismissal for lack of

subject matter jurisdiction based on similarity to Lujan); Institute for Wildlife



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Protection v. Norton, 205 Fed. Appx. 483, 485 (9th Cir. 2006) (holding that based

on Lujan “the district court properly dismissed [certain claims] for lack of subject

matter jurisdiction because they are programmatic challenges not within the district

court’s or our jurisdiction”). Accordingly, NACO’s attempt to distinguish Lujan

on the basis has no merit.8

NACO made a similarly meritless attempt to confine Lujan to its holding on

standing. Op. Br. at 45 – 47. Thus, NACO has misleadingly argued that the Court

in Lujan found only that the plaintiffs there lacked standing, and that if they had

offered facts sufficient to demonstrate standing the Court would have allowed them

to bring a programmatic challenge. Id. NACO further accused the district court in

the present case of inappropriately interpreting Lujan to take “a rigid, almost

mathematical approach to the justiciability of claims,” Id. at 32 – 33; id. at 42,

(arguing that the district court inappropriately based its judgment only on the fact

that NACO made “allegations about more than one or a few improper actions”).

While Lujan did conclude that the plaintiffs in that case lacked standing,

Lujan, 497 U.S. at 882 – 89, NACO entirely ignored the relevant portion of Lujan in

8 By failing to address the issue before the district court, NACO has arguablywaived any argument on Lujan’s applicability. See Dream Palace v. County of

Maricopa, 384 F.3d 990, 1005 (9th Cir. 2003) (“Ordinarily, we decline to considerarguments raised for the first time on appeal.”). However, because AWHPC

discussed Lujan extensively before the district court, and because NACO’s attempt

to distinguish Lujan is so utterly lacking in merit, AWHPC is untroubled by theCourt considering this issue.



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which the Court also concluded that the judiciary lacks authority to review broad

programmatic challenges, id. at 890 – 94. In fact, the Supreme Court made quite

clear that “[i]t is impossible that the [standing] affidavits would suffice” to allow a

litigant to challenge an entire agency program. Id. at 890 (emphasis added). The

Court further explained that “it is at least entirely certain that the flaws in [an]

entire program . . . cannot be laid before the courts for wholesale correction under

the APA.” Id. at 893 (emphasis added). This holding, distinct from the Court’s

holding about standing, is directly applicable here. Accordingly, NACO’s attempt

to distinguish Lujan must fail, and this Court should have no trouble affirming the

district court’s decision that Lujan bars NACO’s programmatic challenge.

Indeed, here, the district court properly found that NACO’s Amended

Complaint “is no different than the programmatic challenge at issue in Lujan . . . .”

Dist. Ct. at 7, ER 7. Thus, like NACO, the plaintiffs in Lujan alleged that

“violation[s] of the law [were] rampant” in BLM’s administration of federal law.

Lujan, 497 U.S. at 891. And, also like NACO, the plaintiffs in Lujan listed

examples of allegedly rampant legal violations. Id. However, the Supreme Court

explained that federal courts may “intervene in the administration of the laws only

when, and to the extent that, a specific ‘final agency action’ is at issue.” Id. at 894

(emphasis added). Thus, the Court held that plaintiffs “cannot seek wholesale

improvement of [a] program by court decree, rather than in the offices of the



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[agency] or the halls of Congress, where programmatic improvements are normally

made.” Id. at 891 (emphasis in original).

Indeed, following Lujan, the Court of Appeals for the D.C. Circuit rejected a

programmatic challenge to BLM’s administration of the WHA for failure to

identify justiciable final agency action. Fund for Animals, Inc. v. U.S. Bureau of

Land Management , 460 F.3d 13, 18 – 19 (D.C. Cir. 2006). There, a complaint from

wild horse advocates challenged BLM’s general “policies for carrying out its wild

horse and burro management duties” through the removal of wild horses from

public lands. While noting that the plaintiff “t[ook] exception to several of the

Bureau’s policies for carrying out its wild horse and burro management duties,” the

court held that “[t]he federal courts are not authorized to review agency policy

choices in the abstract,” absent a final agency action. Id . at 18 – 22 (citing Lujan,

497 U.S. at 891, and SUWA, 542 U.S. at 71) (emphasis added).9

In each of these cases, the plaintiffs brought challenges to an agency’s

general implementation of a statute without challenging any specific final agency

action. Here too, NACO failed to identify any specific final agency action that

9 Similarly, the district court for the District of Nevada also recently rejected a

challenge to BLM’s implementation of the WHA for lack of subject matter jurisdiction because the plaintiff there also failed to identify any final agency

action. See Leigh v. Jewell , No. 3:11-cv-00608, 2014 WL 31675, at *1, 4 (D. Nev.Jan. 3, 2014) (holding that a claim alleging that BLM “conduct[ed] roundups of

excess wild horses in an inhumane manner” was not a final agency action and thus“the court lack[ed] subject matter jurisdiction”).



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harmed any of the Plaintiffs, instead challenging nearly every policy and practice

that BLM uses to implement the WHA throughout Nevada.

The fact that the Amended Complaint challenged BLM’s implementation of

the WHA throughout Nevada, and without any more specific geographic focus,

illustrates its impermissible programmatic nature. Thus, Nevada contains 85 herd

management areas, which are subject to distinct agency actions,10 with BLM

setting management objectives for HMAs in applicable Resource Management

Plans (“RMPs”) and Herd Management Area Plans (“HMAPs”). Although the

issuance of these plans constitutes final agency action, as do many site-specific

actions taken pursuant to them, NACO’s Amended Complaint did not even

mention, much less challenge, a single RMP or HMAP — even after AWHPC

detailed this problem in its original motion to dismiss. MTD 8 – 24, AISER 20 – 36.

Instead, as the district court correctly noted, “rather than identify discrete

agency actions to challenge, the [Amended Complaint] cite[d] general examples to

illustrate the need for broad judicial oversight.” Dist. Ct. at 6, ER 6. Moreover, as

explained supra, these “general examples” addressed entire categories of alleged

agency misbehavior, such as basing decisions on “political considerations and their

10 U.S. Dept. Of Interior, BLM, Herd Area and Herd Management Area StatisticsFY 2013, at 18-22, available at

http://www.blm.gov/pgdata/etc/medialib/blm/wo/Planning_and_Renewable_Resou

rces/wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.File.dat/HMA_HA%20Stats%20FY2013.pdf.



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own preferences,” Am. Compl. ¶ 79, ER 62 – 63; making improper and allegedly

“unscientific” population surveys and determinations regarding AMLs, the

presence or absence of excess horses, and whether to remove horses, id. ¶¶ 35 – 38,

41, 80, ER 44 – 47, 63; decisions to reduce or suspend grazing on public lands, id.

¶¶ 12(b), 43, ER 30 –31, 48; and the “willful failure to sell or destroy” horses,

instead sending them to long-term holding, id. ¶¶ 30, 62, ER 42 – 43, 56 – 57. As the

district court correctly noted, however, the Amended Complaint did not identify or

challenge any particular agency action, but instead provided general examples of

an ostensible need for a complete judicial overhaul of BLM’s administration of the

WHA throughout Nevada. Dist Ct. at 6 – 8, ER 6 – 8.

The district court also correctly observed that NACO’s “requested relief

further supports [its] finding that the [Amended Complaint] fail[ed] to identify

discrete agency actions . . . .” Id. at 7, ER 7. NACO “essentially ask[ed] the

[district court] to compel compliance with the [WHA] and refashion [BLM’s]

management of wild horses and burros in Nevada.” Id. Specifically, the Amended

Complaint requested that the court issue a declaratory judgment explaining what

actions the WHA requires BLM to take, issue an injunction requiring BLM to take

those actions, and maintain jurisdiction to monitor and enforce compliance with

the court’s directives. Am. Compl. ¶¶ 93 – 95, ER 67 – 68. In short, NACO invited

the district court to completely take over the management of wild horses in



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Nevada, as well as the management of wild horses in holding. However, because

federal courts are not the proper forum for such “wholesale improvement” of the

administrative state, Lujan, 497 U.S. at 891, the district court correctly declined

that invitation and dismissed NACO’s programmatic challenge under section

706(2) of the APA. Dist. Ct. at 8, ER 8.

Similarly, because “[t]he prospect of pervasive oversight by federal courts

over the manner and pace of agency compliance with [broad] congressional

directives is not contemplated by the APA,” SUWA, 542 U.S. at 67, the district

court correctly dismissed NACO’s claims under section 706(1) of the APA. Dist.

Ct. at 8, ER 8. As discussed supra and more fully below, a claim under section

706(1) may proceed “only where a plaintiff asserts that an agency failed to take a

discrete agency action that it is required to take.” SUWA, 542 U.S. at 64

(emphasis in original). A 706(1) claim may not seek a “general order[] compelling

compliance with [a] broad statutory mandate . . . .” Id. at 66 – 67. Moreover, the

Supreme Court even identified the Wild Horse Act as a paradigmatic example of

precisely the kind of “ broad statutory mandate” that cannot be compelled under the

APA. Id.11

11 NACO dismissively described SUWA’s discussion of the WHA as mere dicta.Op. Br. at 27 n.5. However, because the Court’s discussion of the WHA was

central to the “rationale upon which the Court based [its] result,” its reasoning is

clearly binding upon this Court. See Seminole Tribe of Fla. v. Florida, 517 U.S.44, 66 – 67 (1996). Moreover, even if NACO were correct, “[c]arefully considered



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The Supreme Court’s reasoning for this limitation on the APA is particularly

applicable here.

The principal purpose of the APA limitations . . . is to protect agenciesfrom undue judicial interference with their lawful discretion, and to

avoid judicial entanglement in abstract policy disagreements whichcourts lack both expertise and information to resolve. If courts were

empowered to enter general orders compelling compliance with broadstatutory mandates, they would necessarily be empowered, as well, to

determine whether compliance was achieved — which would meanthat it would ultimately become the task of the supervising court,

rather than the agency, to work out compliance with the broad

statutory mandate, injecting the judge into day-to-day agency

management.

Id. at 66 – 67 (emphasis added). Placing the judiciary in charge of federal resource

management would require judges to supplant expert agencies and spend scarce

judicial resources on day-to-day administration of statutes — precisely what NACO

asked the district court to do here.12

language of the Supreme Court, even if technically dictum, generally must be

treated as authoritative.” United States v. Oakar , 111 F.3d 146, 153 (D.C. Cir.1997); McCalla v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir.

2004) (“We do not treat considered dicta from the Supreme Court lightly.”).

12 NACO’s attempt to limit SUWA’s application by substituting NACO’s ownlanguage for that of the Supreme Court, Op. Br. at 48 – 50 (paraphrasing SUWA

“colloquially”), is unavailing. The Court clearly held that “a claim under § 706(1)

can proceed only where a plaintiff asserts that an agency failed to take a discreteagency action that it is required to take.” SUWA, 542 U.S. at 64 (emphasis in

original). It further clar ified that “[t]he limitation to discrete agency action precludes . . . broad programmatic attack[s] . . . [and] [t]he limitation to required

agency action rules out judicial direction of even discrete agency action that is notdemanded by law.” Id. at 64 – 65 (emphasis in original).



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Nevertheless, despite the Supreme Court’s pellucid explanation that “[t]he

prospect of pervasive oversight by federal courts over the manner and pace of

agency compliance with [broad] congressional directives is not contemplated by

the APA,” id . at 67 — and despite the Court expressly identifying the WHA as

featuring a broad directive the courts may not oversee, id. — NACO requested that

the district court do exactly that. Specifically, the Amended Complaint asked the

district court to enter “a judgment declaring the duties and responsibilities of

Defendants,” to issue an injunction requiring BLM to “promptly and fully comply

with all the provisions of the Act,” to “establish a schedule” for BLM’s

compliance, and to “retain jurisdiction to monitor and enforce compliance.” Am.

Compl. ¶¶ 93 – 95, ER 67 – 68. In short, NACO invited the district court to do

precisely what the Supreme Court said courts should not do under the APA, Lujan,

497 U.S. at 891 – 94; SUWA, 542 U.S. at 66 – 67 — namely, to assume responsibility

for, and to directly and intensively oversee, BLM’s management of wild horses

throughout Nevada. The district court correctly declined and dismissed NACO’s

broad, programmatic attack.

B.

The District Court Correctly Dismissed NACO’s ClaimsUnder Section 706(2) Of The APA Because NACO Failed To

Identify Any Justiciable Final Agency Action.

NACO also failed to allege any specific “final agency action” that lends

itself to judicial review under Section 706(2) of the APA. Thus, the APA defines



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the term “agency action” as “the whole or part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. §

551(13). Here, NACO failed to point to any such final “agency action” that has

caused the Plaintiffs any specific harm.

1. NACO’s examples do not satisfy the requirement for “a

final agency action” under § 706(2).

Although the Amended Complaint offered examples of agency actions that

allegedly support NACO’s claim of rampant violations of the WHA, such

examples do not render NACO’s broad, programmatic attack justiciable. Indeed,

the Supreme Court in Lujan was “entirely certain that the flaws in the entire

‘program’— consisting principally of the many individual actions referenced in the

complaint, and presumably actions yet to be taken as well — cannot be laid before

the courts for wholesale correction under the APA . . . .” 497 U.S. at 893

(emphasis added). Similarly, this Court has held that “the mere fact that a plaintiff

has identified site-specific [actions] in its pleadings does not permit a

programmatic challenge.” Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1196

(9th Cir. 2011); see also Sierra Club v. Peterson, 228 F.3d 559, 567 (5th Cir. 2000)

(en banc) (finding that even “identif[ying] specific allegedly improper final agency

actions within [a] program” does not render a programmatic challenge justiciable)

(emphasis added). Thus, it is well settled that a programmatic challenge does not



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become justiciable merely because a pleading contains examples of allegedly

unlawful agency actions.13

In any event, the district court correctly found that none of the examples in

the Amended Complaint actually constitutes final agency action. As discussed

supra, the APA allows federal courts to review only “final agency action.” Lujan,

497 U.S. at 882; San Luis Unit Food Producers v. United States, 709 F.3d 798, 801

(9th Cir. 2013), cert. denied , 134 S. Ct. 439 (2013). However, many of NACO’s

allegations are untethered to any “agency action” at all. E.g. Am. Compl. ¶¶ 51,

59, ER 51 – 52, 55 – 56 (challenging BLM’s statements on its website that it does not

slaughter horses and BLM’s attempts to control wild horse populations without

removing them from the range); see also Op. Br. at 24 (citing a BLM website to

argue that the agency admits it sends horses to holding facilities, that numerous

horses are above AML on the range, and that BLM has promised to improve its

methods for counting horses).

13 NACO’s Amended Complaint made quite clear that it listed various actions as

examples of BLM’s allegedly unlawful management of wild horses throughout

Nevada. See Am. Compl. ¶ 12(a), ER 29 – 30 (listing “example[s]” to “document . .

. problems and failure to manage the animals as required by the Act”), id. ¶ 29, ER41 – 42 (listing “example[s]” of statutory duties that BLM allegedly “ignore[s] in

practice”); id. ¶ 46, ER 50 (offering BLM’s order to remove livestock from onearea “[a]s just one example” of “BLM . . . violating multiple use principles”); id. ¶

51, ER 51 – 52 (offering BLM’s statement on its website that it does not slaughter

horses as an “example” of the agency’s “failing to comply with congressionalmandates”).



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Further, those allegations in the Amended Complaint that do relate to some

type of agency action fail to identify any final agency action that is justiciable

under the APA. First, despite complaining generally of BLM’s failure to set

AMLs “properly” or scientifically, Am. Compl. ¶¶ 40 – 41, ER 46 – 47, NACO never

identifies or objects to a single AML determination, nor explains how any AML

determination has allegedly harmed any of the Plaintiffs in this case. Likewise,

allegations about BLM’s allegedly unscientific and unlawful methods for

establishing AMLs, making excess determinations, or determining what constitutes

a “thriving natural ecological balance” are not justiciable because they are not

tethered to any specific final agency action that allegedly harmed any of the

Plaintiffs. While the RMPs or HMAPs that BLM uses to establish AMLs may

themselves constitute final agency actions, the Amended Complaint failed to

identify a single such decision anywhere in its 57 pages.

Similarly, the Amended Complaint’s challenge to “the methodologies

employed” by BLM when making excess determinations failed to state a

justiciable claim because the Amended Complaint failed to identify even one

allegedly unlawful excess determination that harmed any Plaintiff. E.g. Am.

Compl. ¶ 80.14

14 NACO’s cursory argument that the Amended Complaint “did identify

determinations that AMLs had been exceeded, and [instances in which BLM] hadfailed to remove excess animals,” Op. Br. at 7, cannot withstand scrutiny. The



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NACO’s argument that BLM unscientifically determines what constitutes a

“thriving natural balance,” id., not only misquotes the statute (which mandates a

“thriving natural ecological balance,” 16 U.S.C. § 1333(a)) but also ignores the

fact that the Supreme Court has found that the judiciary cannot compel BLM to

comply with this particular “broad statutory mandate[].” SUWA, 542 U.S. at 66 –

67; see also Fund for Animals, 460 F.3d at 21. Moreover, the Amended Complaint

does not identify any particular action that BLM took that allegedly failed to

achieve this broad statutory goal.

Equally unavailing is NACO’s challenge to BLM’s maintenance in long-

term storage of wild horses removed from various western states. E.g., Am.

Compl. ¶ 3, ER 17 (alleging “illegal and improper . . . stockpiling of horses and

burros in holding areas”). NACO did not — and could not —challenge BLM’s

decades-old decision to utilize long-term and short-term holding facilities for wild

horses removed from public lands, because the six-year statute of limitations for

such a challenge has long since expired. See 28 U.S.C. § 2401(a) (establishing six-

Amended Complaint never described even one actual excess determination, which

(as explained above) is a statutory prerequisite to removal of excess horses. 16

U.S.C. § 1333(b)(2); see also Am. Compl. ¶ 12(a)(iv), ER 30 (describing a letterfrom BLM but no excess determination); id. ¶ 12(b), ER 30 – 31 (describing a

request to remove horses but no excess determination); id. ¶33, ER 43 (stating that

BLM “on occasion” failed to remove horses from private lands but identifyingonly one case from 1986); id. ¶ 43, ER 43 (describing a report by the Office of the

Inspector General); id. ¶ 46, ER 50 (describing a failure to remove horses but noexcess determination); id. ¶ 71, ER 60 (noting that horses were removed).



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year statute of limitations for APA claims); S. Rep. No. 101-534, at 1 (1990)

(Congress expressing continued support for holding facilities “as a method of

removing unadopted wild horses and burros”). Moreover, the Amended Complaint

did not identify or challenge a single individual roundup that sent horses to a

holding facility. 15

Similarly, NACO failed to identify any justiciable final agency action by

alleging that BLM unlawfully refuses to remove excess wild horses from public

lands while requiring ranchers and other users to reduce or cease their use of public

lands. E.g., Am. Compl. ¶ 94(f), ER 68 (asking the district court to order BLM to

“cease favoring horses and burros, particularly excess animals, over . . . ranchers”).

As explained supra, to “close appropriate areas of the public lands to grazing use”

when “necessary to provide habitat for wild horses or burros,” BLM must issue a

formal “Notice of Closure.” 43 C.F.R. § 4710.5. However, the Amended

Complaint did not identify any such notice of closure, nor did it allege that BLM

violated its regulations by failing to issue a notice of closure when demanding that

ranchers cease grazing in certain areas. Indeed, the Amended Complaint never

15 NACO has also wholly failed to allege that BLM’s long-term holding of wild

horses causes any concrete or particularized injury to any Plaintiff. NACO doesstate that long-term holding occurs “at considerable public expense,” Op. Br. at 16,

but fails to explain how general BLM expenditures could harm any of the

Plaintiffs. Accordingly, NACO has failed to allege standing to bring this claim.See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 – 61 (1992).



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even mentioned the term “notice of closure”— all of which was also explained in

AWHPC’s May 29, 2014 motion to dismiss. MTD 13 – 18, AISER 25 – 30.

Instead, the Amended Complaint identified BLM’s “demand[] that all

livestock be removed from specified allotments in an area known as the Diamond

Complex in Nevada” as “just one example” of BLM’s alleged violation of

multiple-use principles. Am. Compl. ¶ 46, ER 50. NACO’s opening brief

similarly asserted that “reducing Crawford’s AUMs” and ordering the removal of

cattle from certain public lands constituted final agency action. Op. Br. at 53.

However, the Amended Complaint did not identify these “demand[s]” as any

particular type of agency action, much less allege that they are justiciable final

agency actions. Nor, importantly, did the Amended Complaint seek any relief

regarding these demands. See Am. Compl. ¶¶ 93 – 95, ER 67 – 68. Thus, the

Amended Complaint failed to identify any final agency action regarding closure of

public lands to grazing. See also Fund for Animals v. U.S. Bureau of Land

Management , 357 F. Supp. 2d 225, 229 n.6 (D.D.C. 2004), aff’d 460 F.3d 13 (D.C.

Cir. 2006) (noting that the failure to request relief from a particular action suggests

that a complaint is merely using that action as an example of an agency’s

implementation of a program).



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2.

NACO cannot rely on a “future evidentiary” proceeding

to satisfy the requirements of § 706(2).

NACO has now conceded to this Court that its Amended Complaint did not

identify final agency actions, asserting that such actions “would most appropriately

be specified as part of a[ future] evidentiary showing.” Op. Br. at 15. For

example, NACO conceded that “[t]he [Amended Complaint] did not describe each

and every AML, but instead planned [] to provide that information upon an

evidentiary showing.” Id. at 18 – 19. N

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