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Tillett v. Bureau of Land Management

United States District Court, D. Montana, Billings Division

December 5, 2017



          TIMOTHY J. CAVAN United States Magistrate Judge

         Plaintiff Jerri Joette Tillett (“Tillett”) brought this action seeking to stop alleged ongoing malfeasance by Defendants Bureau of Land Management (“BLM”), Interior Board of Land Appeals (“IBLA”), and Department of the Interior (“DOI”) (collectively, “Defendants”), with respect to the Pryor Mountain Wild Horse Range (“PMWHR”). (See generally Doc. 1.) Pending before the Court are the parties' cross-motions for summary judgment.[1] (Docs. 25, 28.) Having reviewed the parties' arguments and submissions, the Court makes the following findings and recommendations.

         I. Pertinent Facts

         This lawsuit follows a 2014 lawsuit in this Court before U.S. District Judge Susan P. Watters in which Tillett challenged Defendant BLM's decision to conduct prescribed burns on certain sections of the PMWHR. Tillett v. BLM, et al., CV 14-73-BLG-SPW (the “2014 litigation”). Tillett's claims in the 2014 litigation are similar - and in many cases identical - to the claims she has made here. (See generally Doc. 1.) Given the similarities between the two lawsuits, the Court will not reproduce here the factual background from the previous litigation, which is available in Judge Watters' Order and Opinion in that case. See Tillett v. BLM, et al., CV 14-73-BLG-SPW (D. Mont. Aug. 28, 2015 (Doc. 35)).

         Pertinent to this motion is that the 2014 litigation resulted in summary judgment in favor of Defendants, with the sole exception that BLM failed to comply with its National Environmental Policy Act (“NEPA”) obligation to take a “hard look” at the impacts of the prescribed burns on sensitive species. (Id. at 18.) Specifically, Judge Watters found the “BLM complied with all but one of its NEPA obligations: the requirement to take a hard look when it considered the impacts of the prescribed burns on sensitive species in the area, in particular the Clark's Nutcracker.” (Id.) The Court, therefore, remanded the matter to the BLM for further proceedings. (Id. at 19.)

         In response to the Court's ruling, BLM revised and resubmitted the associated environmental assessment (“Revised EA”) (Doc. 15 (Administrative Record at 975, et seq.)), and reissued its Finding of No Significant Impact (“FONSI”) (Id. at 964, et seq.). The instant lawsuit is Tillett's challenge to the Revised EA. As the Court will discuss below, Tillett generally reargues the same issues she raised in the context of the 2014 litigation, including several issues that are clearly res judicata.

         II. Parties' Arguments

         Tillett raises numerous issues, and the Court will address each of her arguments in more specificity below. But for the sake of introduction, Tillett's claims are as follows: (1) the Revised EA fails to take the requisite hard look at the prescribed burns' effects on the Clark's Nutcracker, and instead improperly removes the Clark's Nutcracker from the list of sensitive species (Doc. 29 at 3-4); (2) BLM's decision to conduct prescribed burns within the PMWHR is in violation of the Migratory Bird Treaty Act (“MBTA”), Executive Order 13186, and the Bald and Golden Eagle Protection Act (“BGEPA”)[2]; (3) Tillett's First and Fifth Amendment rights have been violated with respect to the following: (i) her recent appeal before the Interior Board of Land Appeals (“IBLA”), (ii) BLM's failure to timely provide her with a Notice of Proposed Action (“NOPA”), (iii) BLM's “threat” to her and “malicious prosecution” of her in retaliation for whistle-blowing activity (Id. at 6-8); and (4) Defendants having “lied” about various things throughout this and prior litigation, including in pertinent part: (i) the presence of the plant Lesica's Bladderpod within the project area and (ii) the conservation status of the Clark's Nutcracker (Id. at 8-9). Though not addressed in her summary judgment briefing (Doc. 29), Tillett's complaint also challenges the Revised EA's treatment of other sensitive species in the area, including the Peregrine Falcon, several species of bat, and the plant Shoshone Carrot. (See, e.g., Doc. 37 at 7-8, 10-11.)

         For a remedy, Tillett requests the following relief: (1) a “stay” on all active management of the PMWHR; (2) an “investigation, ” presumably of Defendants; and (3) $1.5 million, tax-free. (Doc. 1-1 at 24-25.)

         Defendants generally deny Tillett's claims, arguing that the Revised EA's treatment of sensitive species is satisfactory in all respects, and that Tillett's remaining claims are either baseless, unsupported by citation to legal authority, subject to prior adverse rulings, or some combination thereof. (See generally Docs. 26, 33.) The Court will discuss Defendants' specific arguments in more detail below as appropriate.

         III. Legal Standard

         A. Judicial Review under the APA

         As discussed in the Court's January 30, 2017, Order, Tillett disputes the applicability of the Administrative Procedure Act (“APA”; 5 U.S.C. § 701, et seq. (2000)), and requests that the Court apply a different legal standard that is not as deferential to Defendants. (Doc. 18 at 2-5.) The Court previously determined that the issue of the applicable standard of review appropriately would be addressed in the merits briefing, and invited the parties to raise their arguments in their briefs on summary judgment. Tillett was advised, however, that if she “intend[ed] to argue again that the APA does not apply, she must advance specific legal arguments in favor of that proposition; merely repeating, however vociferously, that she would prefer the APA not apply will not suffice to persuade the Court.” (Id. at 4-5.)

         Tillett now claims that “[the Court] ordered this Plaintiff to comply with the APA formatt [sic] (against Plaintiff's strong objections)…” (Doc. 43 at 2.) Tillett is plainly wrong. The Court very clearly ordered that the applicability of the APA would be a subject of the merits briefing, noting explicitly that “[t]he parties may raise these arguments again in their principal briefs.” (Doc. 18 at 4.) Tillett has failed to materially address the issue in her summary judgment briefing. At no point does she present anything that could be construed as a “specific legal argument[] in favor of [the] proposition” that the APA should not apply in this case. (Id. at 4-5.)

         The Court therefore finds, as did Judge Watters in the 2014 litigation, that Tillett's principal claims should be construed as a challenge to a final agency action under the APA, and will proceed accordingly. See Tillett, CV 14-73-BLG-SPW (D. Mont. Aug. 28, 2015 (Doc. 35 at 1, n. 1)).

         In reviewing an agency action under the APA, the Court must determine whether the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).

         Review under this standard is narrow, and the reviewing court may not substitute its judgment for that of the agency. Id. Review is highly deferential to the agency's expertise, and presumes the agency action to be valid. Arkansas v. Oklahoma, 503 U.S. 91, 112 (1992). The agency, however, must articulate a rational connection between the relevant data and articulate a satisfactory explanation for its action, including a “rational connection between the facts found and the choice made.” Id.; see also Midwater Trawlers Co-op v. Dep't of Commerce, 282 F.3d 710, 716 (9th Cir. 2002). Thus, the court must look at whether the decision considered all of the relevant factors or whether the decision was a clear error of judgment. Id.

         B. NEPA Standard of Review

         NEPA is a procedural statute enacted to protect the environment by requiring government agencies to meet certain procedural safeguards before taking action affecting the environment. See Cal. Ex. rel. Lockyer v. US. Dept. of Agric., 575 F.3d 999, 1012 (9th Cir. 2009). In other words, NEPA “force[s] agencies to publicly consider the environmental impacts of their actions before going forward.” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir. 2002).

         NEPA requires an agency proposing a major federal action significantly impacting the environment to prepare an environmental impact statement (“EIS”) to analyze potential impacts and alternatives. 42 U.S.C. § 4332(C). To determine whether an EIS is required, the agency typically first prepares an EA. 40 C.F.R. § 1501.4(b). An EA is a “concise public document” that “include[s] brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. §§ 1508.9(a), (b); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005).

         Because NEPA does not contain a separate provision for judicial review, courts review an agency's compliance with NEPA under the APA, 5 U.S.C. §§ 701-706. 5 U.S.C. § 706(2)(A). Judicial review of administrative agency decisions under the APA is based on the administrative record compiled by the agency - not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973).

         A court's “review is limited to whether an EIS took a ‘hard look' at the environmental impacts of a proposed action.” Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1072 (9th Cir. 2010). Once the court is “satisfied that a proposing agency has taken a hard look at a decision's environmental consequences, [its] review is at an end.” Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).

         C. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id.

         The moving party bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the opposing party will have the burden of proof at trial, the moving party need only point to an absence of evidence to support the nonmoving party's case. Id. Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).

         IV. Discussion

         It is necessary at the outset to discuss which of Tillett's numerous claims are properly before the Court. As discussed previously, this case follows the 2014 litigation, wherein Tillett challenged an earlier version of the same EA. The 2014 litigation resulted in Judge Watters' determination that “BLM complied with all but one of its NEPA obligations: the requirement to take a hard look when it considered the impacts of the prescribed burns on sensitive species in the area, in particular the Clark's Nutcracker.” Tillett, CV 14-73-BLG-SPW (D. Mont. Aug. 28, 2015 (Doc. 35 at 18)). The Court, therefore, granted the BLM's motion for summary judgment with respect to all claims raised in that case with the exception of the special status species issue. With respect to that issue, the Court vacated the BLM's decisions regarding the impacts on special status species in the EA, and remanded the matter to the BLM for further proceedings. Id. at 18-19.

         With respect to all other issues raised and determined in the 2014 litigation, the Defendants assert that res judicata bars their reconsideration. “An action is barred under res judicata where (1) the prior litigation involved the same parties or their privies, (2) the prior litigation was terminated by a final judgment on the merits, and (3) the prior litigation involved the same ‘claim' or ‘cause of action' as the later suit.” Hydranautics v. FilmTec Corp., 204 F.3d 880, 888 (9th Cir. 2000). “The doctrine of res judicata includes two distinct types of preclusion, claim preclusion and issue preclusion….The doctrine of issue preclusion prevents relitigation of all issues of fact or law that were actually litigated and necessarily decided in a prior proceeding.” Robi v. Five Platters, Inc., 838 F.2d 318, 321-322 (9th Cir. 1988) (quotations omitted).

         With the sole exception of Defendants' “decision regarding the impacts on special status species, ” all other issues the Court considered and decided within the context of the 2014 litigation have been finally determined and cannot be raised again in this action. Therefore, the Court will not address the following issues which were determined in the 2014 final judgment: (1) whether BLM provided adequate notice and allowed sufficient opportunity for public comment (Tillett, CV 14-73-BLG-SPW (D. Mont. Aug. 28, 2015 (Doc. 35 at 8-10))); (2) soil erosion and pesticide use within the burn area (Id. at 15); and (3) the prescribed burns' potential effects on wilderness study areas and the overall wilderness characteristics of the PMWHR (Id. at 16-18). If Tillett believes the precursor case wrongly decided these issues, her remedy was to appeal that decision to the Ninth Circuit Court of Appeals. This is not the proper forum to relitigate those issues.

         In addition, the Court also declines to address Tillett's claim regarding the denial of her recent request for a stay of the proposed prescribed burn before the IBLA. (See Docs. 29 at 6-7, 33 at 10-11, 33-1; Jerri Tillett, 188 IBLA 384 (Dept. Int., Bd. Land. App. 2016).) IBLA's denial of Tillett's request for a stay did not occur until October 6, 2016, and therefore cannot be the final agency decision from which this appeal proceeds, as the filing of this case predates that decision.

         Moreover, the only decision this Court possibly could review is IBLA's decision not to stay the prescribed burns, which issue this Court foreclosed when it denied Tillett's request for a preliminary injunction. (See Docs. 17, 32.) In addition, the IBLA has suspended the appeal pending resolution of this case. (Doc. 33-1.)

         The Court also will not address Tillett's claim of a “malicious prosecution” at the hands of defendant BLM. (See, e.g., Doc. 29 at 8.) This claim, even if valid, has nothing whatsoever to do with Defendants' proposal to conduct prescribed burns on the PMWHR, and therefore has no relevance to the pertinent issues in this administrative appeal. Additionally, to the extent Tillett intends to assert an independent tort claim for a “malicious prosecution, ” she would have to bring that claim pursuant to the Federal Tort Claims Act (28 U.S.C. § 2401) (“FTCA”). In order to do so, the FTCA requires, inter alia, that she file an administrative tort claim with BLM as a jurisdictional prerequisite to filing suit in federal court against the United States. Jerves v. United States, 966 F.2d 517, 518-519 (9th Cir. 1992). Tillett has not alleged or presented any evidence or argument that she has satisfied this jurisdictional requirement.

         After eliminating the foregoing issues, and construing Tillett's pleadings and other submissions liberally, the Court has identified the ...

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