Opinion
Civil No. 03-3081-CO
April 8, 2004
FINDINGS AND RECOMMENDATION
Plaintiff Michael Ware has filed a "Petition for Review," seeking review in accordance with 5 U.S.C. § 702, the Administrative Procedures Act (APA), of the Interior Board of Land Appeals (IBLA) case no. 2003-66. This court may have jurisdiction pursuant to 28 U.S.C. § 1346. Before the court are defendant's motion to dismiss or, in the alternative, motion for summary judgment (#11), plaintiff's motion to join (#14), and plaintiff's motion to strike (#26).
DISCUSSION
In his petition, plaintiff seeks review of the Interior Board of Land Appeals (IBLA) case no. 2003-66. He alleges that he was within his right to request that a road to his mining claim be used to access, and that the BLM has determined that this is impossible. He alleges that "The road was destroyed last week without notice or legal authority." (Pet. At 1.)
Defendant moves to dismiss on the grounds that the court lacks subject matter jurisdiction, and plaintiff has failed to exhaust administrative remedies; or, in the alternative, for summary judgment on the ground that the matter is moot.
Motion to Strike
Plaintiff moves to strike the Cate letter from the administrative record, Admin. R. at 49-54. Because defendant's motion addresses the subject matter jurisdiction of this court, the letter is not at issue. Plaintiff's motion to strike is denied, without prejudice.
Motion to Dismiss
1. Facts
The following facts are taken from plaintiff's petition and the administrative record offered by defendants:
The IBLA issued a decision by an administrative law judge (ALJ) on December 30, 2002, in IBLA 2003-66. Based on the administrative record before her, the ALJ found that the appeal by Michael R. Ware in ORMC 154283 was dismissed and his request for a stay was denied as moot. (Craddock Decl. At 2, Admin. R. at 69-71.) The ALJ found that the November 7, 2002, letter from the BLM from which plaintiff appealed was not an "`identifiable decision'" or final decision from which plaintiff could appeal. (Craddock Decl. At 2, Admin. R. at 70.)
A .87 mile segment of the road which plaintiff requested that the BLM maintain to allow him access to his mining claim, BLM Road 38-2-29.1, (Craddock Decl. At 2, Admin. R. at 26-29, 32-34), was decommissioned on or before September 25, 2003, which consisted of ripping the roadbed and providing for drainage control, (Pet'n at 1; Craddock Decl. At 2.)
2. Legal standards
A motion to dismiss for lack of subject matter jurisdiction challenges the power and authority of the court to hear plaintiff's claims. Stewart v. United States, 199 F.2d 517, 519 (7th Cir. 1952). The party asserting jurisdiction has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446 (1942); see Thornhill Publ'g Co. v. General Tel. and Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). The court will presume it lacks jurisdiction unless plaintiff demonstrates otherwise. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). A challenge based on lack of subject matter jurisdiction may be made in two ways: a facial attack based upon the allegations in the complaint and undisputed facts evidenced in the record where the allegations of the complaint are taken as true; or it may be made as a factual attack based upon extrinsic evidence where the court determines the facts for itself.Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); Meliezer v. Resolution Trust Co., 952 F.2d 879, 881 (5th Cir. 1992).
3. Analysis
Defendant moves to dismiss on the ground of lack of subject matter jurisdiction because the decision appealed from — the BLM November 7, 2002, letter responding to his September 30, 2002, letter — was not a "final agency decision" and is, therefore, not appealable.
Agency action subject to review under the APA must be final agency action. 5 U.S.C. § 702, 704-706; Montana Wilderness Ass'n v. United States Forest Serv., 314 F.3d 1146, 1149 (9th Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3106 (U.S. July 22, 2003) (No. 03-123). It is clear from plaintiff's petition that he seeks review under the APA of the decision of the IBLA 2003-66, in which the ALJ dismissed his appeal and denied his motion for stay, as shown in the administrative record. Plaintiff's petition does not request review of the November 7, 2002, BLM letter directly, as defendant implies in its motion. A decision of the IBLA constitutes a final agency decision, Hafen v. United States, 30 Fed. Cl. 470, 474 (Fed.Cl. 1994); Ware v. United States, 57 Fed. Cl. 782, 787 (Fed.Cl. 2003); 43 C.F.R. § 4.403), and is therefore reviewable under the APA, 5 U.S.C. § 701 et seq. The parties' contentions made in the briefing are more appropriate on a motion addressing the merits of the case.
43 C.F.R. § 4.403 provides in pertinent part: A decision of the Board shall constitute final agency action and be effective upon the date of issuance, unless the decision itself provides otherwise." "`Board' means the Board of Land Appeals in the Office of Hearings and Appeals, Office of the Secretary." 43 § C.F.R. § 4.400(c). "`Secretary' means the Secretary of the Interior or his authorized representative." 43 C.F.R. § 4.400(a).
Defendant's motion to dismiss on this ground should be denied.
Defendant moves to dismiss on the ground that plaintiff has failed to exhaust administrative remedies because he failed to appeal from the November 19, 1997, record of decision.
As discussed above, plaintiff seeks review of the decision of the IBLA of December 2002, and not a direct review of the November 7, 1997, decision, referenced in the administrative record, (Craddock Decl. At 2 Admin. R.). "The IBLA decision exhausts plaintiff's remedies and constitutes a final agency decision." Hafen, 57 F.3d at 474.
Defendant's motion on this ground should be denied.
Defendant moves, in the alternative, for summary judgment on the ground that, because the road has been decommissioned, the matter is moot. Plaintiff responds that the matter is not moot because there is still a ripped roadbed in place that could be repaired.
Because the issue of mootness is a matter of subject matter jurisdiction, the court may address this ground on a motion to dismiss. Iron Arrow Soc. v. Heckler, 464 U.S. 67, 70 (1983); Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990).
Moreover, defendant has failed to comply with Local Rule 56.1(a)(2)(C), which requires that a party moving for summary judgment file a separately filed concise statement of material facts in support of its motion.
A case is moot when "`the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" Shoshone-Bannock Tribes v. Fish Game Comm'n, 42 F.3d 1278, 1281 (9th Cir. 1994) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)); Headwaters, Inc. v. Bureau of Land Mgmt., 893 F.2d 1012, 1014 (9th Cir. 1990) (and cases cited). "A case becomes moot when it `los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law.'"Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002) (quoting Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)). In the Ninth Circuit, it is "clear that completion of activity is not the hallmark of mootness. Rather a case is moot only where no effective relief for the alleged violation can be given." Neighbors, 303 F.3d at 1065 (citing Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)); Northwest Env'tl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988)). In sum, the court cannot take jurisdiction over a case in which no effective relief can be granted. Headwaters, 893 F.2d at 1015. Defendant has "a heavy burden to demonstrate mootness." Id.
It appears from his response to defendant's motion that plaintiff seeks review under 5 U.S.C. § 706(2)(A) and (2)(C), contending that the decision was capricious, an abuse of discretion, and short of statutory right.
Under the APA, "The reviewing court shall — (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions" found, in pertinent part, to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "short of statutory right." 5 U.S.C. § 706(2)(A)(C)).
While it might appear that this case is moot because the road has been ripped, the court cannot say that no effective relief could be granted in the event that plaintiff prevails on his claim, including repairing the roadbed.
Accordingly, defendant's motion to dismiss on this ground should be denied.
Motion to Join
Plaintiff moves to join this case with Ware v. Department of Interior, 03-3099-CO. Defendant agrees that the cases are related, but contends that the cases should not be consolidated because the two cases are sequential and will require the application of legal theories to different factual situations.
Actions involving common questions of law or fact may be consolidated in the discretion of the court for a joint hearing or trial of any or all the matters in issue in the actions. Fed.R.Civ.P. 42(a); Investors Research Co. v. United States Dist. Court, 877 F.2d 777 (9th Cir. 1989).
In the instant case, plaintiff seeks review under the APA of a decision of the IBLA, case IBLA 2003-66, dated December 30, 2002. In case no. 03-3099-CO, plaintiff seeks review pursuant to the APA of a record of decision of November 19, 1997, generated by the Medford District of the Bureau of Land Management. Clearly, the decisions to be reviewed are factually distinct. Accordingly, plaintiff's motion to join is denied.
ORDER
Based on the foregoing, it is ordered that plaintiff's motion to strike (#26) is denied without prejudice, and plaintiff's motion to join (#14) is denied.
FINDINGS AND RECOMMENDATION
Based on the foregoing, it is recommended that defendant's motion to dismiss or for summary judgment (#11) be denied.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.