Opinion
Civil No. A1-00-72.
March 14, 2001.
MEMORANDUM AND ORDER
In the above entitled action, plaintiffs, by way of mandamus, seek to compel the defendants to issue a decision on plaintiffs' pending permit application. Defendants request judgment on the pleadings arguing that sovereign immunity prevents this Court from hearing the case and, alternatively, that mandamus is inappropriate. A telephone conference was held on March 14, 2001 at which time the parties were heard on these issues. Upon review of defendants' Motion for Judgment on the Pleadings, (doc. #5), IT IS ORDERED that the motion is DENIED.
The Court has also reviewed defendants' Motion for Protective Order. (doc. #8). As discussed during the telephone conference, the Court views this motion as MOOT and DENIES the motion. If need for this type of relief reappears the defendants may make a new motion.
Taking as true the allegations in the complaint, the Court notes the following alleged facts. Plaintiffs own land adjacent to the Missouri River in Morton County, North Dakota. Plaintiffs have subdivided the land in order to develop a residential subdivision. As part of this process, plaintiffs have agreed to undertake certain activities to stop and prevent erosion along the river, i.e, installing rip-rap. The installation of rip-rap requires a permit from defendants. Plaintiffs first filed an application for a permit on June 14, 1996. Believing that they did not need a permit to conduct other activities, plaintiffs began to remove trees from the land. Defendants believed that they needed a permit to do that as well, and thus required plaintiffs to withdraw their first application and submit an "after-the-fact" application for a permit. Plaintiffs disagreed with defendants' assessment but complied by filing the "after-the-fact" application on December 10, 1996. Defendants have published the required public notice and received comments but, as of yet, have made no decision on the proposed application.
Plaintiffs' first hurdle is demonstrating a waiver of sovereign immunity. A party bringing an action against the United States bears the burden of demonstrating that the United States, as sovereign, has unequivocally waived its immunity. See Graham v. Federal Emergency Management Agency, 149 F.3d 997, 1005 (9th Cir. 1998). Plaintiffs invoke this Court's subject matter jurisdiction pursuant to 28 U.S.C. § 1331, 1361. Section 1361 is the mandamus statute which provides:
The Court has considered plaintiffs' argument that sovereign immunity is inapplicable in this case and finds it without merit.
The district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Section 1331 is the general federal question basis for jurisdiction. It is well settled, as defendants correctly point out, that neither of these statutes provides a waiver of sovereign immunity. See In re Russell, 155 F.3d 1012 (8th Cir. 1998) (mandamus statute does not waive sovereign immunity); Sabhari v. Reno, 197 F.3d 938 (8th Cir. 1999) (explaining that if § 1331 is used to secure relief against the United States, it must be tied to some independent waiver of sovereign immunity).
Although plaintiffs have not identified a waiver of sovereign immunity in their complaint, they assert that such a wavier may be found within the Administrative Procedure Act (APA), 5 U.S.C. § 701 et. seq. (Doc. #10). The Court agrees that the APA provides a waiver of sovereign immunity. Sabhari, 197 F.3d at 943; Preferred Risk Mutual Ins. Co. v. United States, 86 F.3d 789, 791 (8th Cir. 1996). Moreover, the APA seems to provide the type of relief that plaintiffs request, i.e., mandamus. See 5 U.S.C. § 706(1) (the reviewing court shall compel agency action unlawfully withheld or unreasonably delayed); Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (noting that relief under APA is essentially same as mandamus). Under these circumstances, granting defendants' motion for judgment on the pleadings is inappropriate.
Rather, the Court believes that amending the complaint is appropriate. Plaintiffs made such an oral motion during the telephone conference and the Court granted the motion. Pursuant to Federal Rule of Civil Procedure 15(a) a court shall freely allow amendment when justice so requires. The standard is met in this case. Accordingly, plaintiffs shall be allowed to amend their complaint to assert that the Administrative Procedure Act waives defendants' sovereign immunity and to request relief under 5 U.S.C. § 706(1). The approved amendment, however, is limited to the type of relief originally requested in plaintiffs' first complaint. Plaintiffs shall not use this amendment to broaden the scope of their suit. Defendants shall have five (5) days following service of the amended complaint to respond.
IT IS SO ORDERED.