Luciano v. United States of America, et al.,

Filing 63

ORDER signed by Judge Garland E. Burrell, Jr on 3/28/13 ORDERING that a briefing is required and scheduled for 5/6/2013 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.; each party shall file a brief no later than 4/15/13; replies due no later than 4/22/13; hearing as to 33 Motion for Summary Judgment and 38 Motion for Summary Judgment reset for 8/12/2013 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Manzer, C)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE EASTERN DISTRICT OF CALIFORNIA

7
8
9

ROBERT A. LUCIANO, JR., Trustee
of the Robert A. Luciano Jr.
Revocable Trust Dated February
25, 1995,

10

Plaintiff,

11
12
13
14
15
16
17

v.
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK,
Secretary of Agriculture; UNITED
STATES FOREST SERVICE; TOM
TIDWELL; RANDY MOORE; EARL FORD;
DEB BUMPUS; and Does 1–25,
Defendants.
________________________________

18

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

2:11-cv-1831-GEB-KJN
ORDER REQUIRING BRIEFING; AND
CONTINUING HEARING

Review of Plaintiff’s Complaint has prompted the Court to

19

require

20

Procedure Act (“APA”) claims are actionable claims. This briefing will

21

be required since judicial review is not authorized under the APA to the

22

extent that the challenged agency action or inaction “is committed to

23

agency discretion by law.” Reeb v. Thomas,636 F.3d 1224, 1226 (9th Cir.

24

2011). In this action, Plaintiff appears to challenge the U.S. Forest

25

Service’s refusal to complete Plaintiff’s various “proposals for the

26

exchange of” Plumas National Forest land with Plaintiff’s “private lands”

27

under the Small Tracts Act and the Federal Land Policy and Management

28

Act. (Compl. ¶¶ 1, 30, ECF No. 1.) However, neither party briefs in

briefing

on

the

issue

whether

1

Plaintiff’s

Administrative

1

pending cross-motions for summary judgment whether the “agency action”

2

or inaction Plaintiff challenges “is committed to agency discretion by

3

law.” 5 U.S.C. § 701(a).

4

Therefore, each party shall file a brief discussing this issue

5

no later than April 15, 2013. Each party may file a response brief no

6

later than April 22, 2013. A hearing on this issue is scheduled to

7

commence at 9:00 a.m. on May 6, 2013.

8

Further, since this issue should be decided before any hearing

9

is conducted on the pending cross-motions for summary judgment, the

10

hearing on the cross-motions for summary judgment currently scheduled for

11

April 8, 2013, is continued to commence at 9:00 a.m. on August 12, 2013.

12

Dated:

March 28, 2013

13
14
15

GARLAND E. BURRELL, JR.
Senior United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
2