Opinion
Civil No. 03-1175-CO.
March 11, 2004
FINDINGS AND RECOMMENDATION
Plaintiffs bring this action alleging claims for unlawful abrogation of mining rights, arbitrary and capricious invocation of the Endangered Species Act (ESA) requirements, improper listing of Oregon Coastal Coho Salmon, improper listing of Southern Oregon Northern California Coastal Salmon (SONCC), and constitutional violations. Defendants move to partially dismiss some of plaintiffs' claims for lack of subject matter jurisdiction or for failure to state a claim (#13).
I. FACTS
First Claim for ReliefPlaintiffs allege that:
Included in the Northwest Forest Plan (NWFP) is Standard and Guideline MM-1, which requires a reclamation plan, an approved plan of operations, and a reclamation bond for all mineral operations within Riparian Reserves. (Id. at ¶ 29). Standard and Guideline MM-1 conflicts with 36 C.F.R. § 228.4. (Id. at ¶¶ 31-35). The Forest Service is taking "the position that MM-1 applies to suction dredge mining activities without regard to the requirements of 36 C.F.R. § 228." (Id. at ¶ 36).
By letter dated January 7, 2002, Forest Supervisor Williams advised the Bartons that they would be required to file a plan of operations pursuant to Standard and Guideline MM-1, even though the responsible ranger determined that the Bartons' prospecting activities will not likely cause significant disturbance of surface resources. (Id.). The Bartons sought administrative review of this decision, but no response was ever received. (Id.). The Bartons have exhausted their administrative remedies. (Id.).
The Forest Service is requiring suction dredge miners to file plans of operation using forms that impose undue paper work burdens in violation of the Privacy Act, 5 U.S.C. § 552a(e)(3), and without the statutory prerequisites required under the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq. (Complaint ¶ 37). The Forest Service's application of Standard and Guideline MM-1 in contexts where it is contrary to the requirements of 36 C.F.R. § 228.4 is arbitrary, capricious, and contrary to law. (Id. at ¶¶ 38-39).
The Forest Service's demand that suction dredge operators file plans of operation is contrary to law and infringes of the miners right to conduct their mining operations in the Siskiyou National Forest free of such requirements. (Id. at ¶ 40). The Forest Service's demand is causing or threatens to cause harm to the miners, because the miners cannot reasonably be required to conduct their mining activities under threat of legal action for failure to secure advanced approval of an operating plan. (Id. at ¶ 42). The Forest Service's demands are causing or threatening to cause injury to the miners as the miners are required to perform assessment work every year or face cancellation of their claims. (Id. at ¶ 43).
The court finds that:
The NWFP amended the Siskiyou National Forest Land Resource Management Plan. (Complaint ¶ 27). The NWFP provided notice and opportunity for comment before it was enacted. (58 Fed. Reg. 44651 and 58 Fed. Reg. 40444).
The Bartons are members of Waldo Mining District (WMD), and were members at the time this suit was filed. (Kitchar Decl. ¶ 2). WMD did not join in the Bartons' appeal.
WMD appealed the Forest Service's decision to deny five plans of operations submitted by its member Jeffrey Wagnell. (Id.). However, the Forest Service's decision on Mr. Wagnell's plans of operation was reversed on appeal. (Defendants' Exhibit P).
Second Claim for Relief
Plaintiffs allege that:
The Forest Service has "repeatedly declared that suction dredge mining is likely to adversely affect [ESA] listed species." (Id. at ¶ 51). Plaintiffs allege that this conclusion is arbitrary and capricious. (Id.). The "Forest Service's factual findings that suction dredge mining is likely to adversely affect listed species triggers: a duty on the part of the Forest Service to consult with federal fish and wildlife agencies pursuant to 50 C.F.R. § 402.14(a)" and "to avoid making any irreversible or irretrievable commitment of resources". (Id. at ¶¶ 52 and 53).
The Forest Service's findings "are in substance an indefinite injunction against approval of suction dredge mining operations unless until consultations . . . are completed." (Id. at ¶ 53). The vast majority of consultations are not completed within the statutory time limits and that the Forest Service and the Secretary can extend the consultation period. (Id. at ¶ 54).
The Forest Service's "may effect" finding is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (Id. at ¶ 58). This finding indefinitely places miners "at legal risk for mining operations or threaten the cancellation of their mining claims." (Id.). The requirement to participate in ESA consultations in connection with suction dredge mining is unreasonable. (Id. at ¶ 59). ESA consultation will unreasonable interfere with their mining rights. (Id. at ¶ 61).
The court finds that:
The District Ranger's decision on the Bartons' claim did not make any determination regarding whether their operations may affect ESA listed species, and it did not state that any ESA consultation was required. (Defendants' Exhibits K and L). 28 U.S.C. § 28(f) allows mining claimants to pay a fee in lieu of doing the required annual assessment work on their mining claims.
Third Claim for Relief
Plaintiffs allege that:
The Secretary's failure to withdraw the listing for the Oregon Coastal coho salmon after being informed of potential defects in listing as provided in Alsea Valley Alliance v. Evans, 99-6265-HO (D.Or. September 10, 2001) is arbitrary and capricious. (Complaint ¶ 64). The Secretary has failed to conduct a reassessment of the ESA classification of the Oregon Coastal coho as required by 16 U.S.C. § 1533. (Id. at ¶ 66). The Secretary's failure to withdraw the listing and/or conduct a reassessment is arbitrary, capricious, and contrary to law. (Id. at ¶ 67).
Fourth Claim for Relief
Plaintiffs allege that:
The SONCC coho salmon listing is unlawful for the same reasons set forth in Alsea Valley Alliance, and, since the decision inAlsea Valley Alliance, the Secretary has been aware that the listing is defective. (Id. at ¶ 71). The Secretary has failed to publish any proposed rule indicating whether or not he intends to delist the SONCC coho within the statutory period. (Id. at ¶ 73). The Secretary has been aware, since 1998, that there is a "zero likelihood that the SONCC coho will become extinct." (Id. at ¶ 74).
The SONCC listing is arbitrary, capricious, and contrary to law. (Id. at ¶ 75). The Secretary has failed to conduct a reassessment of the ESA classification of the SONCC coho as required by 16 U.S.C. § 1533. (Id. at ¶ 76). The Secretary's failure to withdraw the listing and/or conduct the requisite reassessment is arbitrary, capricious, and contrary to law. (Id. at ¶ 77).
The court finds that:
The challenged listing occurred in May of 1997 with the promulgation of the final regulation. (62 Fed. reg. 24588, 24609). Plaintiffs filed their complaint on August 29, 2003. (Docket #1). The Forest Service has not required formal consultation under the ESA for individual mining claims.
Fifth Claim for Relief
Plaintiffs allege that:
Under the constitution, they are entitled to equal protection and due process under the law. (Complaint ¶ 81). The requirement of a plan of operations bars the miners from operating in the Siskiyou National Forest, because the Forest Service is unwilling or unable to approve any plans of operation. (Complaint ¶ 82). The Forest Service's implementation of its plans and regulations denies the miners due process of law. (Id. at ¶ 83). The procedures for reviewing mining plans of operations deprive the miners of substantive due process, as the Forest Service is invoking impossible procedural requirements as a device to accomplish the withdrawal of lands from mining. (Id.). The process threatens to deprive the miners of their property interests in their mining claims by threatening the access required to perform activities necessary to avoid cancellation of their claims. (Id.).
Employees of the ForestService have worked jointly with environmental groups in nonpublic process with the purpose of excluding suction dredge mining from the Siskiyou National Forest. (Id. at ¶ 84). The Forest Service has given environmental groups access to Forest Service's decisionmaking and documents. (Id.). The Forest Service employees have failed to properly document their decision for the express purpose of assisting environmental plaintiffs with lawsuits against suction dredge mining. (Id.). These actions have deprived the plaintiffs of due process and equal protection under the law. (Id.).
The principal ground for restricting the miners activities is that the restrictions are necessary for the protection of listed salmon. (Id. at ¶ 85). The miners are in the class of general citizens. (Id.). The Secretary permits or authorizes other citizens to directly kill tens of thousands of listed salmon for sale and consumption denying the miners equal protection. (Id. at ¶¶ 86-87). The Secretary's position is that it is impossible to enforce the prohibition against the sale and transport of listed species because the listed salmon cannot be distinguished from the unlisted salmon. (Id. at ¶ 88).
The conduct of defendants threatens the constitutional rights of the miners in violation of the Constitution and 42 U.S.C. § 1983. (Id. at ¶ 89).
II. LEGAL STANDARDS
Rule 12(b)(1) — Subject Matter Jurisdiction
The court presumes lack of subject matter jurisdiction until the plaintiff proves otherwise in response to a defendant's Rule 12(b)(1) motion. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994); La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1026 (9th Cir. 2001). A Rule 12(b)(1) motion may be brought as a facial or factual attack. Gould Electronics, Inc. v. U.S., 220 F.3d 169, 176 (3rd Cir. 2000).
In reviewing a factual attack, the court may consider matters outside the pleadings without converting the motion to a motion for summary judgment. Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995). The court may weigh disputed evidence and determine the facts to evaluate whether jurisdiction exists. Valdez v. U.S., 837 F. Supp. 1065, 1067 (E.D. Cal. 1993). The presumption of truthfulness does not attach to the allegations of plaintiff's complaint or any inferences drawn therefrom. Id. Rule 12(b)(6) — Failure to State a Claim
When a party presents matters outside the pleadings in response to a 12(b)(6) motion for failure to state a claim, the court has discretion to decide whether to consider those matters and convert the motion to a motion for summary judgment or to decline to consider those matters and address the motion under 12(b)(6).Skyberg v. United Food and Commercial Workers International Union, AFL-CIO, 5 F.3d 297, 302 fn. 2 (8th Cir. 1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can plead no set of facts in support of a claim. Mishler v. Clift, 191 F.3d 998, 1002 (9th Cir. 1999) (citation omitted). The court accepts plaintiff's material allegations in the complaint as true and construes them in the light most favorable to plaintiff. Id. Defendant bears the burden of showing no claim has been stated. Gould Electronics, Inc., 220 F.3d at 178.
III. DISCUSSION
Defendants move to dismiss arguing that:
1) WMD's first claim should be dismissed in part for lack of jurisdiction, because WMD fails to challenge any final agency action;
2) WMD does not have standing, because there are no WMD members challenging any final agency action;
3) plaintiffs' APA claims based on the Privacy Act should be dismissed, because the Privacy Act provides adequate remedies;
4) plaintiffs' second claim should be dismissed for lack of subject matter jurisdiction, because the decision to engage in consultation under the ESA is not a final agency action that is ripe for review;
5) the court lacks jurisdiction over any claims for failure to delist — these claims could have been brought under the ESA and plaintiffs failed to give the required 60-day notice before filing suit;
6) the court lacks jurisdiction over any claims for failure to withdraw or reassess a listing — these claims could have been brought under the ESA and plaintiffs failed to give the required 60-day notice before filing suit;
7) the remainder of plaintiffs' fourth claim is time barred under 28 U.S.C. § 2401(a);
8) defendants are immune from liability under 42 U.S.C. § 1983; and
9) plaintiffs fail to state a claim for any violation of the Equal Protection or Due process Clauses.
In response, plaintiffs argue that:
1) the Bartons were members of WMD as evidenced by the declaration of WMD's president;
2) plaintiffs' may challenge the Forest Service's policies as part of the Bartons claim;
3) plaintiffs complaint should be construed as alleging that the Forest Service has informally adopted a rule requiring plans of operation from every miner;
4) the Paper Work Reduction Act can be used as a defense refuting any demands that they file a notice of intent or a plan of operations;
5) plaintiffs' second claim is ripe for review based on litigation in 03-3013 and the miners will suffer hardship if the court withholds review;
6) this case should be stayed pending the Ninth Circuit's decision in Alsea;
7) under Bennett, plaintiffs may use the APA as a means of review;
8) plaintiffs fourth claim is an as applied challenge which can be brought under the APA;
9) plaintiffs' claim is not time barred, because the Secretary exceeded his powers in making the original listing decision;
10) plaintiffs concede they do not have a claim under 42 U.S.C. § 1983; and
11) plaintiffs are challenging the Forest Service's conduct that is inconsistent with the regulatory scheme.
In reply, defendants argue that:
1) the first claim should be dismissed as to WMD, because WMD did not join in the Bartons' appeal and Mr. Wagnell and WMD were granted the relief sought;
2) plaintiffs' claims regarding promulgation of a rule without notice and comment should be rejected as the Northwest Forest Plan Amendments provided notice and an opportunity to comment on Standard and Guideline MM-1;
3) plaintiffs do not dispute that the Privacy Act contains its own cause of action and such a claim cannot be brought under the APA;
4) plaintiffs' claim under the Paperwork Reduction Act does not satisfy the final agency action requirement;
5) plaintiffs' second claim should be dismissed, because consultation under the ESA is not a final agency action and plaintiffs' have not satisfied the hardship requirement of the ripeness test;
6) the court lacks jurisdiction over the portion of plaintiffs' third claim that could have been brought under the ESA, because plaintiffs failed to give the required 60-day notice;
7) plaintiffs' fourth claim should be dismissed for failure to give the 60-day notice required by the ESA and because any policy-based challenges to the initial listing are time barred;
8) plaintiffs cannot bring an as applied challenge because neither the Secretary nor the Forest Service has required formal consultation for individual mining claims;
9) plaintiffs cannot challenge formal consultation on the programmatic level, because the claim is not ripe for review and plaintiffs do not satisfy the hardship requirement;
10) plaintiffs cannot state a procedural Due Process claim because they have not been deprived of their property rights and this claim is not ripe for review; and
11) plaintiffs do not have claims for violation of equal protection or substantive due process, because there is a rational basis for the defendants' conduct. First Claim
Plaintiffs concede that they are not bringing claims under the Privacy Act or under the Paperwork Reduction Act.
In order to seek review under the APA, WMD must challenge a final agency action. 5 U.S.C. § 704. An agency action is considered final when: 1) the action marks the consummation of the agency's decision making process and 2) the action is one by which rights or obligations are determined or from which legal consequences flow. Montana Wilderness Association v. U.S. Forest Service, 314 F.3d 1146, 1150 (9th Cir. 2003). Plaintiffs may not bring a broad, generic challenge to an agency program, but, instead, must bring a challenge to a site-specific action by the agency. See Lujan v. National Wildlife Federation, 497 U.S. 871, 891-893 (1990).
Plaintiff WMD's first claim seeks review of the Forest Service's "position that MM-1 applies to suction dredge mining activities without regard to the requirements of 36 C.F.R. § 228". This type of challenge does not satisfy the final agency action requirement. See Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000), cert. denied, 532 U.S. 1051 (2001). WMD cannot rely on the Bartons appeal to satisfy the final agency action requirement; WMD did not participate in that appeal and has not exhausted its administrative remedies with regard to that appeal. See Kleissler v. U.S. Forest Service, 183 F.3d 196 (3rd Cir. 1999). WMD cannot rely on the appeal of Mr. Wagnell to satisfy the final agency action requirement; any claim based on Mr. Wagnell's appeal became moot when Mr. Wagnell won his appeal.See Northwest Environmental Defense Center v. Gordon, 849 F.2d 1241 (9th Cir. 1988).
Based on the foregoing, defendants' motion to dismiss WMD's first claim should be granted.
Second Claim
Ripeness is an aspect of the court's subject matter jurisdiction; therefore, lack of ripeness bars the court from hearing a claim. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993 (1989). The purpose of the ripeness doctrine is to prevent the courts, through avoidance of premature judicial review of administrative actions, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way. Ash Creek Mining v. Lujan, 934 F.2d 240, 243 (10th Cir. 1991) (citation omitted).
Before a court may review an agency decision, it must evaluate the fitness of the issues for judicial review and the hardship to the parties of withholding court consideration. Ash Creek Mining Company, 934 F.2d at 243 (citation omitted). Fitness is a measure of the interest of the court and the agency in postponing review, and hardship is the measure of the challengers countervailing interest in securing immediate judicial review.Blackfeet National Bank v. Rubin, 890 F. Supp. 48, 52-53 (D.D.C.), affirmed, 67 F.3d 972 (D.C. Cir. 1995). If the interest of the court and the agency in postponing review outweighs the interest of the challengers seeking relief, or if deferring consideration might eliminate the need for review, then principles of ripeness dictate the postponement of judicial review. Id. at 53 (citation omitted).
In determining the fitness for judicial review, the court considers four factors:
1) whether the issues in the case are purely legal;
2) whether the agency action involved is a final agency action within the meaning of the APA;
3) whether the action has or will have a direct and immediate impact upon the plaintiff; and
4) whether the resolution of the issue will promote effective enforcement and administration by the agency. Id. at 53-54 (citation omitted). Under the hardship prong, it must be shown that withholding judicial review would result in a direct and immediate hardship and would entail more than possible financial loss. Abott Laboratories v. Gardner, 387 U.S. 136, 152 (1967).
In their second claim for relief, plaintiffs challenge the Forest Service's determination that suction dredge mining "may affect" ESA listed species. Plaintiffs do not allege that the Forest Service has engaged in consultation on any specific mining claim. Plaintiffs do not challenge any final agency action.
The court finds that plaintiffs' claim is not ripe because it is contingent upon future events that may or may not occur; plaintiffs would have to submit an operating plan that would lead to a may affect determination. The court also finds that, at this point, any decision by the court could interfere with the agency process and that the court would benefit from further development of the record before any decision regarding the propriety of the Forest Service's actions with regard to specific mining claims or specific determinations. The Forest Service has not made any determination regarding whether the Bartons' activities on their mining claims or activities on any other mining claims would require ESA consultation. (See Defendants' Exhibits K and J).
Plaintiffs claim that the Forest Service's action are preventing them from doing assessment work on their mining claims which could result in their claims being invalidated. The court finds that these allegations are insufficient to meet the hardship prong. The ESA allows for the continuation of certain activities during the consultation process. 16 U.S.C. § 1536(d). In addition, the law allows miners to pay a $100 fee in lieu of their annual assessment work. 30 U.S.C. § 28(f).
Based on the foregoing, the court finds that plaintiffs' second claim does not challenge a final agency action which is ripe for review and plaintiffs have failed to meet the hardship prong of the ripeness test. Therefore, plaintiffs' second claim should be dismissed.
Third Claim
Plaintiffs' third claim brings various challenges against the listing of the Oregon Coast coho salmon. This listing was found to be invalid in Alsea Valley Alliance v. Department of Commerce, 161 F. Supp.2d 1154 (D.Or. 2004) and the matter was remanded to the agency for further action. The court finds that plaintiffs' third claim is moot and not ripe for review. Therefore, plaintiffs' third claim should be dismissed.
Fourth Claim
Plaintiffs' fourth claim brings various challenges against the listing of the SONCC coho salmon, including claims that the Secretary has a nondiscretionary duty to reassess the listing or delist the SONCC coho and the Secretary has failed conduct a reassessment of the ESA status of the coho. The court finds that, since these claims could have been brought under the ESA, 16 U.S.C. § 1540(g)(1)©) and that plaintiffs failed to give the required 60 day notice before filing suit as required by the ESA, 16 U.S.C. § 1540(g)(2)©), the court lacks jurisdiction over these claims. See Hawaii County Green Party v. Clinton, 124 F. Supp.2d 1173 (D. Hawaii 2000). Therefore, this part of plaintiffs' fourth claim should be dismissed.
Since the ESA does not contain a statute of limitations, the general six year statute of limitations for civil actions against the government is applicable. Alsea Valley Alliance, 161 F. Supp.2d at 1160. In this case, the final regulation listing the SONCC coho salmon occurred in May of 1997. Plaintiffs' complaint was filed more than six years after that final decision. Therefore, plaintiffs' remaining claims based on the listing should be dismissed as time barred. See Broadened Horizons Riverkeepers v. U.S. Army Corps of Engineers, 8 F. Supp.2d 730, 736 (E.D. Tenn. 1998). Fifth Claim
Plaintiffs concede that they do not have a claim under section 1983.
Plaintiffs' fifth claim for relief contains three parts. The first part alleges that the Forest Service's requirement that miners file plans of operation, which the Forest Service is unwilling or unable to approve, denies the miners due process of law and threatens their property interest in their mining claims. In their memorandum, plaintiffs' argue that they are challenging a pattern of conduct by the Forest Service that is inconsistent with the regulatory scheme and that they are being denied procedural due process and equal protection through the Forest Service's arbitrary acts.
To state a claim for denial of procedural due process, plaintiffs must allege that they were deprived of a property interest. Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Plaintiffs have failed to allege an actual deprivation of their property interest. Therefore, their procedural due process claims should be dismissed. For the same reason, the court finds that plaintiffs' procedural due process claims are not ripe for review. See Park Lake Resources, LLC v. U.S. Depart. of Agriculture, 197 F.3d 448 (10th Cir. 1999).
The Fifth Amendment gives equal protection from discriminatory treatment by the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954). Equal protection claims brought under the Due Process Clause of the Fifth Amendment are treated the same as those brought under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).
To state an equal protection claim based on unequal application of regulations plaintiffs must allege intentional or purposeful discrimination. Central Airlines, Inc. v. U.S., 138 F.3d 333, 335 (8th Cir. 1998). The fact that employees may base their decision on an incorrect interpretation of the law is insufficient to state a claim for violation of equal protection or substantive due process. Id.
Plaintiffs' allegations in the first part of their claim fail to allege intentional or purposeful discrimination. Plaintiffs allege that the Forest Service employees' decision are inconsistent with the regulations. These allegations are insufficient to state a claim for equal protection or substantive due process violations. See Id.
In the second part of plaintiffs' fifth claim, plaintiffs allege that the Forest Service denied the plaintiffs due process and equal protection by: working jointly with environmental groups in a non-public process giving them discriminatory favorable access to Forest Service decision making and documents; failing to document the decision making process to assist environmentalists with lawsuits; and failing to supervise and control employees. As discussed above, plaintiffs do not allege that they were deprived of any property, and, therefore, they do not state a claim for denial of procedural due process. Plaintiffs also fail to allege purposeful or intentional discrimination, and, therefore, fail to state a claim for denial of substantive due process or equal protection. In the alternative, the court finds that plaintiffs' claim fails because the Forest Service has a legitimate, non-discriminatory reason for working with environmental groups, and such contacts are not prohibited. See Sierra Club v. Costle, 657 F.2d 298, 400 (D.C. Cir. 1981); See also Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534, 1540 n. 15 (9th Cir. 1993).
In the third part of their claim, plaintiffs allege that they are being denied equal protection because the Secretary permits other commercial and recreational interests to kill Oregon Coast coho salmon and SONCC coho salmon. The court finds that plaintiffs fail to state a claim because the Secretary has a rational basis for issuing an incidental take statement for the complained of activities; the Pacific Fishery Management Council engaged as an applicant in formal consultation regarding the implementation of its fisheries management plan. See 68 Fed. Reg. 23913-23923.
Based on the foregoing, plaintiffs' fifth claim for relief should be dismissed.
III. RECOMMENDATION
Based on the foregoing, it is recommended that defendants' motion to dismiss (#13) be granted.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.