United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
Jerri Tillett brought this action challenging the alleged
unlawful conduct by Defendants Bureau of Land Management
(“BLM”), Interior Board of Land Appeals
(“IBLA”), and Department of the Interior
(“DOI”) with respect to the culling of wild
horses within the Pryor Mountain Wild Horse Range
(“PMWHR”). Presently before the court is
Defendants' Motion to Dismiss. (Doc. 3.)
filed a complaint on July 17, 2018 challenging the BLM's
proposed cull of wild horses within the PMWHR. (Doc. 1.) A
case challenging the same action was filed in this Court
before U.S. District Judge Susan P. Watters on August 17,
2018. See Kathrens et al v. Zinke et al, 1:18-cv-00125-SPW.
That case has since been dismissed because the BLM withdrew
the Decision Record and Finding of No. Significant Impact
(“DR/FONSI”) concerning the challenged action.
instant case, Plaintiff requests this Court issue a permanent
injunction on the BLM's activities in the Pryor
Mountains, order an investigation into the BLM Billings Field
Office, and award her restitution in the amount of two
million dollars. (Doc. 1-1 at 5-6.) In response, Defendants
filed the instant motion to dismiss.
motion challenges Plaintiff's failure to exhaust her
administrative remedies, leaving this Court without subject
matter jurisdiction to hear this case. (Doc. 4.) Plaintiff
responded to the motion on September 11, 2018. (Doc. 6).
Before Defendants filed a reply, the IBLA remanded the
decision challenged in this action back to the BLM. (Doc.
11-1). Defendants now assert that the IBLA's remand to
the BLM renders this case moot, and it should be dismissed.
challenges the legality of the BLM's 2018 PMWHR cull.
(Doc. 1). The Court construes this claim as a challenge to a
final agency action under the Administrative Procedure Act
(“APA”). The APA provides a “waiver of
sovereign immunity in suits seeking judicial review of a
federal agency action under § 1331.” Gallo
Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d 1194,
1198 (9th Cir. 1998). The APA limits a court's judicial
review to agency actions “made reviewable by statute
and final agency action for which there is no other adequate
remedy in a court”. 5 U.S.C. § 704. “Where
no other statute provides a private right of action, the
‘agency action' complained of must be
‘final agency action.'” Norton
v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61-62
(2004) (emphasis in original). A final agency action meets
two conditions: “[f]irst, the action must mark the
consummation of the agency's decision making process . .
. it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which rights or
obligations have been determined, or from which legal
consequences will flow.” Gallo Cattle Co., 159
F.3d at 1198-99 (quoting Western Radio Servs. Co. v.
Glickman, 123 F.3d 1189, 1196 (9th Cir. 1997.)
plaintiff's claim may not be entitled to judicial review
under the APA if it was asserted at the wrong time.
Exhaustion, mootness, and finality are complementary
doctrines that may prevent a claim from proceeding. Due to
the timing of Plaintiff's complaint, and the subsequent
regulatory actions taken in this matter, Plaintiff's
claim was unripe when filed and has now become moot. For the
following reasons, these doctrines bar the Court from
reviewing Plaintiff's claim.
whether a claim is right for review requires a court to
“evaluate both the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration”. Abbott Laboratories v.
Gardner, 387 U.S. 136, 149 (1967). “A claim is not
ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or that may not
occur at all.” Citizens for Appropriate Rural Roads
v. Foxx, 815 F.3d 1068, 1079 (2016) (citing Texas v.
U.S., 523 U.S. 296 (1998)). Further, “in the
context of judicial review under the APA, a challenge to
agency conduct is ripe only if it is filed after the final
agency action.” Citizens for Appropriate Rural
Roads, 815 F.2d at 1079.
Plaintiffs claim was filed on July 17, 2018. The BLM's
Finding Of No. Significant Impact and Decision Record was
finalized on August 3, 2018. (Doc. 4-1). “The issuance
of a [Record of Decision] generally constitutes a final
agency action.” Id. Because Plaintiff's
claim was filed prior to the BLM's issuance of the
Decision Record, her claim is unripe.
Plaintiff's claim rests upon events that did not occur
and a legal determination that has not yet occurred. In fact,
the action Plaintiff challenges was enjoined in Kathrens
et al v. Zinke et al, 1:18-cv-00125-SPW. “[T]he
‘actual injury' requirement of Article III standing
precludes judicial consideration of . . . hypothetical
harm.” Envtl. Defense Ctr. v. EPA, 344 F.3d
832, 867 (9th Cir. 2003).
Plaintiff's claim is unfit for judicial review. Further,
since the challenged action was enjoined and is now
withdrawn, withholding ...