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Tillett v. Bureau of Land Management

United States District Court, D. Montana, Billings Division

January 30, 2017

JERRI JOETTE TILLETT, Plaintiff,
v.
BUREAU OF LAND MANAGEMENT, INTERIOR BOARD OF LAND APPEALS, and DEPARTMENT OF THE INTERIOR, Defendants.

          ORDER

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiff Jerri Joette Tillett's (“Tillett”) Motion for Judge Watters' Active Involvement in this Case. (Doc. 10.) Tillett's motion presents three discrete issues for the Court's review:

1. Tillett seeks action on her preliminary injunction request;
2. Tillett seeks U.S. Magistrate Judge Ostby's removal from the case; and
3. Tillett requests that the Administrative Procedure Act not apply to this case.

         Except with respect to Tillett's renewed request for preliminary injunction, which is dealt with separately in the Court's concurrently filed Findings and Recommendation (Doc. 17), Tillett's motion is DENIED in full.

         I. Preliminary Injunction Request

         Tillett seeks action on the request for a preliminary injunction appearing in her initial Complaint. (See Docs. 1-1 at 23; 10 at 1-2.) Tillett's preliminary injunction request is dealt with separately in the Court's Findings and Recommendations, entered January 30, 2017. (Doc. 17.)

         II. Removal of Magistrate Judge Carolyn S. Ostby

         As Tillett recognizes (Doc. 10 at 11), this case has been reassigned to Magistrate Judge Timothy J. Cavan. (Doc. 8.) Tillett's Motion for Judge Ostby's removal is denied as moot.

         III. Application of the Administrative Procedure Act

         Tillett requests that the Court adjudicate this case without application of the Administrative Procedure Act (“APA;” 5 U.S.C. § 701, et seq. (2000)). (Doc. 10 at 3-4.) Tillett explains that “[i]t has been [her] experience that [she has] an actual ‘zip-to-zero' chance of actually prevailing in any of [her] arguments utilizing the [APA].” (Id. at 3.) Essentially, Tillett is arguing that the APA affords too much deference to the Defendants, and that she would prefer a standard more advantageous to her as plaintiff. She proposes a format whereby the Defendants respond to the opening brief she submitted along with her Complaint (Doc. 1-1), and that she be given a chance to “respond in the usual timely manner with [her] answer.” (Doc. 10 at 4.) Tillett argues that such a format will encourage impartiality by the Court. (Id.)

         Defendants respond first that the application of the APA and the standard of review appropriate in this case are best left to the merits briefing. (Doc. 13 at 8.) Nevertheless, Defendants argue that, based on the allegations contained in Tillett's Complaint, the only viable basis for this lawsuit is a review of final agency action under the National Environmental Policy Act (“NEPA”), which is governed by the APA. (Id. at 8.) To the extent that Tillett invokes the Migratory Bird Treaty Act (“MBTA”) and the Bald and Golden Eagle Protection Act (“BGEPA”), Defendants argue those laws do not contain private rights of action, and therefore also are reviewable only under the APA. (Doc. 13 at 9.)

         Tillett replies with non-specific denials of the APA's applicability to this case. (Doc. 14 at 4-9.) She suggests a format similar to the format utilized in Tillett, et al. v. BLM, CV 12-87-BLG-RFC, which she apparently found to be more friendly to her than the treatment she has received in cases involving the APA. (Id. at 6.) Finally, she argues that the Court should ...


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