Black Dog Outfitters, Inc. v. State of Idaho Outfitters and Guides Licensing Board et al

Filing 112

MEMORANDUM ORDER granting 91 Motion for Summary Judgment; granting in part and denying in part 92 Motion for Summary Judgment; denying 96 Motion to Supplement; denying 100 Motion to Supplement. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BLACK DOG OUTFITTERS, INC.,
Plaintiff,
vs.
STATE OF IDAHO OUTFITTERS AND
GUIDES LICENSING BOARD, UNITED
STATES DEPARTMENT OF THE
INTERIOR/BUREAU OF LAND
MANAGEMENT AND UNITED STATES
DEPARTMENT OF
AGRICULTURE/UNITED STATES
FOREST SERVICE,
Defendants.

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Civil 09-CV-00663-E-EJL

MEMORANDUM ORDER

INTRODUCTION
Pending before the Court in the above-entitled matter are Defendant United States
Department of the Interior/Bureau of Land Management and United States Department of
Agriculture/United States Forest Service’s (the “Federal Defendants”) Motion for
Summary Judgment, Defendant State of Idaho Outfitters and Guides Licensing Board’s
(“IOGLB”) Motion for Summary Judgment, and Plaintiff’s Motions to Modify and
Supplement the Administrative Record. The parties have filed their briefing and the
matters are ripe for the Court’s consideration. Having fully reviewed the record herein,
the Court finds that the facts and legal arguments are adequately represented in the briefs

and record. Accordingly, and in the interest of avoiding further delay, and because the
Court conclusively finds that the decisional process would not be significantly aided by
oral argument, the Motions shall be decided on the record before this Court without oral
argument.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Black Dog Outfitters, Inc. (“Black Dog”), is an Idaho corporation that
provides outfitting services for hunting and fishing excursions on the Snake River in
Idaho. (Dkt. 56.) Black Dog currently holds certain permits and licenses on the Snake
River for waterfowl hunting and related services from various regulatory agencies:
IOGLB, the United States Forest Service (“Forest Service”), and the Bureau of Land
Management (“BLM”). The claims in this case arise as a result of Black Dog’s failed
attempts to obtain additional outfitting licenses and permits, in particular to include
fishing services, on the Snake River from these same agencies.
The current regulatory scheme allows for only a limited number of permits and
licenses to be issued for outfitters on the South Fork of the Snake River. All of the
permits and licenses allowed by the regulations have been issued to other outfitters. In
October of 2007 Black Dog undertook its own investigation into the availability of
outfitting opportunities on the South Fork on the Snake River and concluded that the river
was not being used to capacity. (Dkt. 56, pp. 5, 8-9.) As a result of its findings, Black
Dog submitted applications to each of the Defendant agencies seeking to have additional
outfitting permits/licenses issued to it on four different resources. (Dkt. 56, p. 9.)

Defendants denied Black Dog’s permit/license requests generally stating there were no
new permits/licenses available under the regulations and none could be created until a
capacity study is undertaken to determine whether there is a need for additional permits.
Black Dog argues the denials were without any basis other than “the fact that the
government agencies noted that there were ‘no available licenses or permits’ for the
resources.” (Dkt. 56, p. 9.) The denials of its applications and requests, Black Dog
claims, are arbitrary and capricious as there is no scientific basis or study to support the
regulatory limitation on the number of outfitter licenses for the resource. In particular,
Black Dog alleges that the various state and federal agencies responsible for regulation of
the South Fork had never, prior to the summer of 2008, conducted a capacity study nor
shown any basis for the current limitations on the numbers of permits and licenses. (Dkt.
56, pp. 7-8, 10.) Although the Federal Defendants have indicated they would undertake a
capacity study in 2008, Black Dog points out the study has never materialized. (Dkt. 56,
p. 11.) Black Dog further questions the viability of any such study’s objectivity or
scientific basis and, instead, argues it is only intended to confirm the status quo limiting
the number of outfitter permits and licenses. (Dkt. 56, pp. 19-20.)
As part of its investigation and pursuit of new permits/licenses, Black Dog began
requesting information to support the findings of its studies that the resource was being
underutilized. This included Freedom of Information Act (“FOIA”) requests. Thereafter,
Black Dog alleges, the Defendants violated its First Amendment Rights to free speech
and took discriminatory action toward it by restricting it from utilizing its waterfowl

hunting license because of the complaints and actions Black Dog had taken in regard to
its information requests. (Dkt. 56, pp. 11-12.) Black Dog contends there was no
opportunity to comment on these actions that the Defendants took intending to intimidate
and retaliate against it. (Dkt. 56, pp. 12-13.) In addition, Black Dog points out the
existing permits are held almost exclusively by two owners, creating a monopolistic
situation that is enabled by the Federal Defendants and the IOGLB. (Dkt. 56, pp. 14-16.)
The Defendants, Black Dog argues, implicitly exempts these two owners and their
operations from having to comply with regulations while using the regulations to
effectively exclude Black Dog. (Dkt. 56, p. 21.)
On December 18, 2009, Black Dog, filed its initial Complaint in this action
alleging jurisdiction under 28 U.S.C. § 1331, § 1367 and § 1337. (Dkt. 1.) On May 10,
2010, the Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court denied the Motion to
Dismiss and granted Black Dog’s request to amend its Complaint. (Dkt. 45.) Thereafter,
Black Dog filed its Third Amended Original Complaint (“Amended Complaint”) wherein
it sought declaratory relief pursuant to the First, Fifth, and Fourteenth Amendments as
well as the Commerce Clause. (Dkt. Nos. 56, 58.) On May 13, 2011, the Court granted in
part and denied in part the Federal Defendants’ Motion to Dismiss leaving only two
claims to be resolved in this case: violation of the First Amendment by Retaliation and
Violation of Equal Protection. (Dkt. 71.) The Defendants have now each filed Motions for
Summary Judgement contesting these claims. Black Dog has filed its Motions to Modify

and Supplement the Administrative Record. The Court now takes up these pending
Motions.
STANDARD OF LAW
Judicial review of administrative agency decisions under the Administrative
Procedures Act (“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). 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).
Summary judgment is appropriate where “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
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.” MotorVehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29,
43 (1983). The scope of review under the “arbitrary and capricious” standard is narrow
and a court is not to substitute its judgment for that of the agency. Id. Nevertheless, the
agency must examine the relevant data and articulate a satisfactory explanation for its

action including a “rational connection between the facts found and the choice made.” Id.
(citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). In reviewing
that explanation, the court must “consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment.” Id. (citing Bowman Transp. Inc. v. Arkansas-Best Freight Syst., 419 U.S. 281,
285 (1975); Citizens to Preserve Overton Park, 401 U.S. at 416).
DISCUSSION
1.

Black Dog’s Permit History
Black Dog is licensed by the IOGLB for certain boating, fishing, and waterfowl

hunting activities in various areas of the state of Idaho. As relevant to this action, Black
Dog holds a license to conduct waterfowl hunting on the South Fork of the Snake River.
(Dkt. 56.)1 In February of 2008, Black Dog’s license was amended to allow it to provide
boating services on the Snake River solely for purposes of transporting waterfowl hunting
clients during the season for waterfowl hunting in the areas in which Black Dog is
licensed to engage in waterfowl hunting activities. (IOGLB 265, 1553-58, 1562.)
In June of 2008, Black Dog appeared before the IOGLB to present its argument
that the South Fork of the Snake River was being underutilized. Black Dog proposed that
the IOGLB reallocated user days on the South Fork of the Snake River from the currently
licensed entities who were not using all of their user days. (IOGLB 138-174.) On June 25,

1

Black Dog also holds licenses for commercial fishing services on the Main Snake River in Idaho
Falls, Idaho.

2008, Black Dog also submitted an application to amend its license to allow for boating
and fishing activities on several river sections including the South Fork of the Snake
River. (IOGLB 1564-70.) After conferring with the Federal Defendants, the IOGLB
denied Black Dog’s requests and proposals stating “there are currently no openings for
new outfitter opportunities on the South Fork of the Snake River or other rivers
discussed” at the June 2008 meeting. (IOGLB 310-12, 319-320, 327-331, 373.)
As to the Federal Defendants, Black Dog holds two outfitter permits: 1) a five-year
Forest Service permit to guide waterfowl hunters and 2) a two-year BLM permit to
conduct guided boating and fishing trips. As it did with IOGLB, Black Dog has sought
additional permits from the Federal Defendants to expand its outfitting business;
specifically to include guided fishing and boating on the South Fork of the Snake River.
On June 13, 2008 Black Dog submitted a “formal request” for such additional permitting
and asked that the Forest Service reallocate the unused days of currently licensed
outfitters. (FS 4270.) The Forest Service denied the request stating Black Dog’s current
permit is only for waterfowl hunting, not fishing. (FS 4272.) To include fishing in Black
Dog’s permits would require a new use authorization which, the Forest Service stated,
was not available under the Forest Plan and 1991 Snake River Plan. The Plans limits use
of the resource to eight outfitting permits all of which had been issued. In order to expand
the number of permits, the Forest Service noted it would need to complete a capacity
study to determine whether additional permits were needed before the Forest Service
could consider applications for new permits. (FS 4272.)

Black Dog made a similar request to the BLM on June 13, 2008 seeking to amend
its permit to conduct commercial outfitting and guiding for fishing and boating services
on the Upper Snake River. (BlackDog 2447-8.)2 BLM denied the request on the basis that
the requested areas are outside of its jurisdiction and because there were no available
openings on the river sections requested. (BlackDog 2516-17.) BLM too informed Black
Dog that before additional new permits could be issued a capacity study would have to be
completed to determine if the resource was not being properly utilized and to demonstrate
the need for another outfitter. (BlackDog 2516-17.) Black Dog made the same request
again in 2010 which the BLM denied for the same reasons. (BlackDog 2637-2639.)
2.

Motion to Supplement Administrative Record
Black Dog seeks to modify the Administrative Record such that certain sections of

the record be separated and renamed for purposes of filing its response to the Defendants’
Motions for Summary Judgment. (Dkt. 96.) Such modification, Black Dog argues, will
simplify and streamline the matter for the Court. (Dkt. 104, 107.) Additionally, Black
Dog asks that it be allowed to supplement the Administrative Record to include certain
emails which it argues are proof of retaliatory actions taken against it by Defendants.
(Dkt. 96.) In a second Motion, Black Dog seeks to also supplement the record with the

2

There are multiple Administrative Records submitted in this case on behalf of each of the
Defendant agencies: the Forest Service, BLM, and IOGLB. (Dkt. 75, 80, 81, 88, 89, 90.) For purposes of
this Order and so as to keep a clear record in this case, when citing to the Administrative Records, the
Court will use the title and number stamped on to each document as it appears in the Administrative
Records filed in this case.

minutes from the August 25-26, 2011 meeting of the IOGLB to support its Equal
Protection Clause claim. (Dkt. 100.)
The Forest Service opposes the first Motion arguing the APA limits review of this
matter to the record before the agency at the time of the decision. (Dkt. 101.) As to the
Motion to supplement the record with the August 25-26, 2011 minutes of the IOGLB
meeting, the Forest Service does not oppose the request as it goes to the administrative
record submitted by the IOGLB, not the Forest service. (Dkt. 102.) The IOGLB opposes
adding the August 25-26, 2011 IOGLB meeting minutes because it is a record from a
meeting occurring some eighteen months after this case was filed. (Dkt. 103.) Likewise,
IOGLB opposes the request to add certain emails to the record as they were not before the
agency at the time of the events in question in this case. (Dkt. 106.) Because review under
the APA is limited to the record before the agency at the time of the challenged
underlying decision, IOGLB maintains these minutes are not properly apart of the
Administrative Record. Both Defendants also dispute that the record supports the claims
made by Black Dog. In reply, Black Dog maintains the IOGLB meeting minutes provide
further evidence of the unequal treatment it received and continues to receive from the
IOGLB. (Dkt. 105, 107.) Having reviewed the parties’ arguments and the record herein,
the Court denies the Motions.
As the Court has previously stated, the claims raised in Black Dog’s Amended
Complaint can only be properly brought under the APA, 5 U.S.C. § 701 et al. (Dkt. 71.)
“The APA expressly declares itself to be a comprehensive remedial scheme: it states that

a ‘person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial
review’... and then sets forth the procedures for such review” Western Radio Serv. Co. v.
United States Forest Serv., 578 F.3d 1116, 1122 (9th Cir. 2009) (quoting 5 U.S.C. §§ 702,
704, 706).
In conducting an APA review, the law is clear that courts should not look outside
the administrative record absent unusual circumstances. See Florida Power & Light Co.
v. Lorion, 470 U.S. 729, 743-44 (1985). The Court recognizes that there are certain
instances where it is necessary for the reviewing Court to go beyond the administrative
record, in particular, to determine whether the agency considered all relevant factors. See
Alvarado Community Hospital v. Shalala, 155 F.3d 1115, 1124 (9th Cir. 1998) (citation
omitted). However, the policy behind limiting judicial review is to assure the reviewing
court limits its decision to the record before the agency, not a new record created before
the Court. See Camp v. Pitts, 411 U.S. 138, 142 (1973).
The materials sought to be supplemented into the Administrative Record in this
case were not present or before the agencies at the time when the events complained of in
this case were allegedly occurring. As such, those materials are not ones that can be
included for the Court’s consideration in this matter as they did not exist at the time of the
events giving rise to the claims made here. See Camp, 411 U.S. at 142. Furthermore, the
Court denies the request to supply a modified Administrative Record. Although the
Administrative Record in this case is quite lengthy, the most appropriate and economical

method for citations is for all of the parties to cite to the same Administrative Record.
Adding yet another modified record to this case will only serve to lengthen the already
voluminous materials. Although Black Dog’s response brief cited to its own modified
administrative record, the Court has been able to locate the documents referred to in the
Administrative Records filed in this case as needed to rule on the Motions. As such,
Black Dog’s Motions are denied.
3.

Claims Against IOGLB
A.

Subject Matter Jurisdiction

IOGLB argues the APA claims are inapplicable to it as the APA does not apply to
state agencies and, for that reason, the claims against it should be dismissed. (Dkt. 92 at
9.) The Court agrees. “By its own terms, the APA does not apply to state agencies.” See
Southwest Williamson County Community Ass’n, Inc. v. Slater, 173 F.3d 1033, 1035 (6th
Cir. 1999). “Agency” is defined by the APA as “each authority of the Government of the
United States,” subject to certain exceptions that are not applicable here. 5 U.S.C. §
701(b)(1). Thus, the IOGLB as a state agency is not subject to review under the APA. See
Hunter v. Underwood, 362 F.3d 468, 477 (8th Cir. 2004) (“The APA does not grant
federal courts jurisdiction to review actions of state or municipal agencies.”). As such,
this Court lacks subject matter jurisdiction to review the IOGLB’s final agency decisions.

For that reason the Plaintiff’s claims made pursuant to the APA against IOGLB are
dismissed.3 The Motion for Summary Judgment is granted.4
B.

Claim Preclusion

IOGLB also argues Black Dog’s claims are barred against it by Claim Preclusion.
In 2008, Black Dog filed suit against the IOGLB in Idaho state court regarding many of
the same or substantially similar issues as have been raised in this case concerning
outfitter licensing, usage, and the capacity study. Though the First Amendment and Equal
Protection claims were not specifically raised in the state suit, IOGLB argues they could
have been brought at that time and, therefore, are still precluded. (Dkt. 92 at 10.)
State judicial proceedings are afforded full faith and credit such that res judicata
and other preclusion doctrines may operate to limit or exclude causes of action in federal
court. 28 U.S.C. § 1738. “[A] federal court sitting in diversity must apply the res judicata
law of the state in which it sits.” Costantini v. Trans World Airlines, 681 F.2d 1199, 1201
(9th Cir. 1982). The Idaho Supreme Court has stated that “Res judicata is comprised of
claim preclusion (true res judicata) and issue preclusion (collateral estoppel). Under
principles of claim preclusion, a valid final judgment rendered on the merits by a court of
competent jurisdiction is an absolute bar to a subsequent action between the same parties

3

IOGLB recognizes it is subject to the Idaho Administrative Procedures Act (“IDAPA”) but
notes Black Dog has not raised that claim and the time for doing so has long since passed. (Dkt. 92 at 910.)
4

Although the Court has determined that Black Dog’s claims may be procedurally barred as to
IOGLB, the Court will discuss the substance of the two remaining claims as to both Defendants in
considering Motions for Summary Judgment below.

upon the same claim.” Lohman v. Flynn, 78 P.3d 379, 386 (Idaho 2003) (citations
omitted); see also Coeur d'Alene Tribe v. Asarco Inc., 280 F.Supp.2d 1094, 1117-19 (D.
Idaho 2003) (“Although the literal definition of the term res judicata is expansive enough
to cover both preclusion of relitigation of the same cause of action and relitigation of the
same issue, the modern tendency is to refer to the aspect of the doctrine that precludes
relitigation of the same issue in a separate cause of action as collateral estoppel, and to
refer to that aspect preventing relitigation of the same cause of action as res judicata.”)
(quotations and citations omitted)).
“Res judicata thus applies to protect litigants from the burden of litigating the
same cause of action with the same party or its privity.” Coeur d'Alene Tribe, 280
F.Supp.2d 1094, 1117-19 (D. Idaho 2003) (citing Hindmarsh v. Mock, 57 P.3d 803 (Idaho
2002)). Res judicata “bars not only subsequent relitigation of a claim previously asserted,
but also subsequent relitigation of any claims relating to the same cause of action which
were actually made or which might have been made. Lohman, 78 P.3d at 386 (citing
Hindmarsh, 57 P.3d at 805 (citations omitted)). For Res judicata to preclude litigation the
following requirements must be met: (1) the same claim or cause of action arising out of
the same facts must be involved in both suits; (2) there must be a final judgment on the
merits in the prior action; and (3) the parties in the instant action must be the same as or in
privity with the parties in the prior action in question. Coeur d’Alene Tribe, supra
(citations omitted). “The purposes of these judicially created rules are to conserve judicial

resources, protect litigants from multiple lawsuits, and foster certainty and reliance in
legal relations.” Id. (citation omitted).5
Here, Black Dog agrees the first element of claim preclusion is met as the same
parties are involved in both cases. However, Black Dog maintains claim preclusion does
not apply here because the actual claims at issue in this matter were not decided in the
state court action. (Dkt. 95 at 4.)
The state court action was filed in the Seventh Judicial District of the State of
Idaho, in and for the County of Bonneville, Case 08-6407. (Dkt. 92-4, Ex. A.) There,
Black Dog sought judicial review of IOGLB’s final order of September 18, 2008 and
underlying matters regarding its request to “equitably reallocate underutilized and/or
unutilized commercial fishing activities on the South Fork of the Snake and [IOGLB]’s
refusal to [so reallocate].” (Dkt. 92-4, Ex. A.) Notably, the state complaint alleges “the
current system for allocating commercial fishing activities on the South Fork of the Snake
River does not provide equal protection under the United States or Idaho Constitutions to
Black Dog....the IOGLB’s actions were in violation of constitutional provisions of the

5

The Idaho Supreme Court has recognized that the three fundamental purposes served by res
judicata are:
First, it "[preserves] the acceptability of judicial dispute resolution against the corrosive
disrespect that would follow if the same matter were twice litigated to inconsistent
results." Second, it serves the public interest in protecting the courts against the burdens
of repetitious litigation; and third, it advances the private interest in repose from the
harassment of repetitive claims. The doctrine of claim preclusion bars not only
subsequent relitigation of a claim previously asserted, but also subsequent relitigation of
any claims relating to the same cause of action which were actually made or which might
have been made.
Lohman, 78 P.3d at 386.

State and Federal Constitutions, including without limitation, rights of due process, equal
protection under the laws and a fundamental right to free commerce....” (Dkt. 92-4, Ex. A
at 5 and Ex. B at 5.) The state district court determined Black Dog lacked standing to
bring its claims because it held no property rights to the license it sought to obtain. (Dkt.
92-4, Ex. H.) Black Dog filed an appeal but later stipulated to dismiss the appeal. (Dkt.
92-4, Ex. I-K.)
Having reviewed the complaint filed in the state court matter and the surviving
claims in this case, the Court finds claim preclusion does not apply here. There is no
dispute that the parties are the same in this case as those parties who litigated the state
case. (Dkt. 95 at 4.) As to the second element for claim preclusion, the Court finds the
claims raised in this case are or should have been raised and litigated in the state case.
Black Dog alleged an Equal Protection claim in his state complaints as well as
generalized constitutional claims that are the same as those raised in this matter against
IOGLB. (Dkt. 92-4, Ex. A, B.) The factual basis making up the claims is also the same.
Though Black Dog disputes this, arguing its disparate treatment allegations involved
continuing actions outside of the dates of those alleged in the state court matter, this
argument misses the point. The claims are the same. That Black Dog continues to
challenge the same actions by IOGLB following the dismissal of the state court case is of
no moment; the fact remains the claims and the basis alleged to support the claims against
IOGLB are the same as those raised and decided before the state court.

As to the final requirement for claim preclusion, a final adjudication on the merits,
it is less clear whether this factor is met. After the state district court entered its order
dismissing Black Dog’s petition for judicial review, Black Dog filed an appeal to the
Idaho Supreme Court. (Dkt. 92, Ex. H, I.) The state court case was ultimately concluded
when the parties filed a joint stipulation to dismissal of appeals and the Idaho Supreme
Court entered an order granting the same. (DKt. 92, Ex. J, K.) The stipulation was made
pursuant to Idaho Appellate Rule 33 which does not specify whether such a dismissal is
with or without prejudice. The stipulation itself also does not state whether it was with or
without prejudice. (Dkt. 92-4, Ex. I, K.)
In considering the scope of claim preclusion, or res judicata, the Idaho Supreme
Court has summarized it as follows: “[A] valid and final judgment rendered in an action
extinguishes all claims arising out of the same transaction or series of transactions out of
which the cause of action arose.” Diamond v. Farmers Group, Inc., 804 P.2d 319, 323
(Idaho 1990); see also Lohman, 78 P.3d at 386. Because the stipulation to dismiss the
appeal filed in the state court matter did not specify that it was “with prejudice,” whether
there was a valid final judgment entered is not clear and it leaves open the possibility that
the dismissal of the appeal may not have preclusive effect.
For instance, a voluntary dismissal of an action done by stipulation of the parties
under Idaho Rule of Civil Procedure 41(a)(1), is interpreted to be “without prejudice”
unless otherwise stated in the notice of dismissal or stipulation subject to one exception
that does not apply here. See Idaho R. Civ. P. 41(a)(1). Under this reasoning, because the

stipulation to dismiss the appeal filed in this case does not specify that it was with
prejudice, it seems the presumption would be that the dismissal was without prejudice
and, arguably, not a final adjudication of the merits of the claims.6 Moreover, the state
district court’s dismissal of Black Dog’s petition was based on a lack of standing, not
necessarily a ruling going to the substance of Black Dog’s claims. (Dkt. 92, Ex. H.) As
such, the Court concludes that claim preclusion does not apply in this case as it does not
appear that a final adjudication of the merits of the claims was had in the state court
matter. Accordingly, the Motion for Summary Judgment is denied in this respect.
3.

Violation of the First Amendment by Retaliation
The First Amendment provides that “Congress shall make no law ... abridging the

freedom of speech.” Citizens United v. Federal Election Com’n, 130 S.Ct. 876, 896
(2010). “Premised on mistrust of governmental power, the First Amendment stands
against attempts to disfavor certain subjects or viewpoints.” Id. at 898 (citing United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (striking down
content-based restriction)). “Prohibited, too, are restrictions distinguishing among
different speakers, allowing speech by some but not others.” Id. at 899 (citation omitted).

6

See also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (“[D]ismissal ... without
prejudice” is a dismissal that does not “operat[e] as an adjudication upon the merits,” [Federal ]Rule
41(a)(1), and thus does not have a res judicata effect.); Semtek Intern. Inc. V. Lockheed Martin Corp., 531
US 497, 505 (2001) (“The primary meaning of “dismissal without prejudice,”...is dismissal without
barring the plaintiff from returning later, to the same court, with the same underlying claim. That will also
ordinarily (though not always) have the consequence of not barring the claim from other courts, but its
primary meaning relates to the dismissing court itself.”) (contrasting Federal Rule of Civil Procedure 41
subsections (a) and (b) and holding the state law for preclusion applies to federal courts sitting in diversity
jurisdiction absent any conflict with federal interests).

“As instruments to censor, these categories are interrelated: Speech restrictions based on
the identity of the speaker are all too often simply a means to control content.” Id. The
Supreme Court has recognized “our longstanding recognition that the Government may
not retaliate for exercising First Amendment speech rights....” Wilkie v. Robbins, 551 U.S.
537, 555 (2007) (citing Rankin v. McPherson, 483 U.S. 378 (1987) (landowner brought a
Bivens case against the BLM).
Black Dog’s First Amendment claim appears to be premised on the alleged
retaliatory actions the BLM and IOGLB took towards it as Black Dog has requested
public information and sought to obtain outfitting permits/licenses and/or reallocation of
unused days. (Dkt. 56.) Defendants argue the First Amendment retaliation claim has no
merit as Black Dog cannot show that the Defendants have taken any retaliatory action
against it. (Dkt. 91 at 17.) Defendants point out that no new permits for the area have
been issued to Black Dog or any other outfitters, as they are not available at this time.
(Dkt. 91 at 17.) Black Dog counters that its retaliation claim is based on “multiple
instances of the Defendants’ intentional retaliation against” it because of its investigation
into the Defendants’ management of the resource at issue. (Dkt. 95 at 6.) The instances of
retaliation Black Dog points to are its FOIA requests, internal emails of the Defendants,
and other actions by Defendants to limit its existing permits which Black Dog argues
evidence their “general dislike” of Black Dog. (Dkt. 95 at 7-13.)
Although this claim survived the Motion to Dismiss, it does not overcome
summary judgment. Black Dog alleges its inquires and expressions of concern are

protected speech under the First Amendment. (Dkt. 56 at 23) (citing Gibson v. United
States, 781 F.2d 1334, 1338 (9th Cir. 1986)). Black Dog has failed, however, to show any
retaliation by the Defendants attributable to Black Dog’s exercise of its First Amendment
rights. The First Amendment claim alleges retaliation against Black Dog for “expressing
[its] concerns regarding the use of allocated resources, and further, for requesting
information through the Freedom of Information act” regarding whether the resources
were being properly utilized. (Dkt. 56 at 22.) The retaliatory actions, Black Dog alleges,
include Defendants attempts at deterrence by dismissing Black Dog’s requests as
“quickly as possible” and attempting to limit Black Dog’s use of its waterfowl permit in a
manner not consistent with its historic use. (Dkt. 56 at 23.) The Court concludes that the
particular instances of allegedly violative conduct by Defendants described in Black
Dog’s Complaint and Response brief do not give rise to disputed facts as to the claim of
retaliation in violation of the First Amendment. (Dkt. 56 and 95 at 7-13.) Though the
allegations regarding Defendants’ conduct may show the contentious nature of the
dealings between the parties, they do not allege retaliation on the part of the Defendants
as to Black Dog’s First Amendment rights.
The “requests” Defendants allegedly denied in retaliation are Black Dog’s attempts
to have new/additional permits be issued to it for outfitting services on the South Fork of
the Snake River. This is not retaliation. Such permits are not available at this time and the
Defendants do not have the ability or authority to issue any new permits without first
satisfying the applicable statutory and regulatory requirements for issuance of new

permits in the area – including completion of a capacity study. Thus, Defendants denial of
the application was not retaliation.
As to Black Dog’s arguments concerning the Defendants’ actions showing their
“general dislike” of Black Dog, the IOGLB counters that these were not alleged in the
Complaint. (Dkt. 108 at 6.) The Court disagrees with IOGLB. The First Amendment
Claim as stated in the Complaint alleges retaliation against Black Dog for its expressions
of its concerns regarding the use of allocated resources and requesting information
through FOIA. (Dkt. 56 at 22.) The Complaint goes on to allege the Defendants quickly
dismissed Black Dog’s requests and attempted to limit its use of its waterfowl permit in a
manner not consistent with its historic use in an effort to deter Black Dog in retaliation for
its inquisitiveness concerning the use of the resource. Specifically, the claim alleges the
denial of Black Dog’s application for an outfitter’s license and the above
attempt to place limits on Black Dog’s waterfowl permit is an
unconstitutional retaliation on the part of the Defendants. Plaintiff’s
inquiries and expressions of concern are protect speech under the First
Amendment.
(Dkt. 56 at 23) (citations omitted). The Court finds the claim has been stated in the
Complaint.
Although alleged in the Complaint, the fact remains that Black Dog has not
pointed to facts evidencing retaliation by the Defendants as to either their denial of its
requests for permits/licenses or any limitations placed on its existing waterfowl permit.
The denials of Black Dog’s applications and requests for permits/licenses were not
retaliation but, instead, made because there were no licenses or permits left to be issued.

Furthermore, the alleged actions by Defendants to limit Black Dog’s existing waterfowl
permit are contrary to the record. The Administrative Record as it existed at the time of
the events in question here reveals that Black Dog was granted a major amendment to its
waterfowl permit whereby Black Dog is allowed to use certain boating services to shuttle
its clients to the waterfowl hunting areas for which it is allowed to hunt. (IOGLB 265,
1553-1558, 1562.) Black Dog disputes this arguing the permit amendment was stopped
by the IOGLB Director, Jake Howard. (Dkt. 95 at 8.) The Administrative Record,
however, reflects that an amendment to allow Black Dog to perform certain boating
activities was approved as requested by Mr. Howard at the April 24, 2008 IOGLB
meeting, which Black Dog attended. (IOGLB 1562.)
Finally Black Dog argues the IOGLB applied the regulations governing outfitters
more aggressively towards Black Dog than to other licensed outfitters in retaliation for its
information requests. In particular, as to Black Dog’s advertisements and marketing of its
outfitting guiding services. (Dkt. 95 at 8-9.) Materials concerning these issues in the
Administrative Record reveal that Black Dog entered into a Stipulation and Consent
Agreement for Informal Disposition concerning these actions wherein it admitted grounds
existed upon which it could be disciplined. (IOGLB AR 263-266, 269-279) (FS 4207-09,
4294-98.)7 As such, the record does not substantiate any First Amendment retaliation
claim. Black Dog’s argument only serves to dispute the events to which it has already
7

To the extent Black Dog may reference materials outside of the Administrative Records as
evidence of its arguments of continuing disparate treatment by the Defendants, they are not appropriate
for the Court’s consideration in this APA case and the Court has not considered the same.

admitted fault. Furthermore, as the Court previously determined, the claims against the
IOGLB are procedurally barred.
Black Dog has raised similar allegations of targeted punishment toward it by the
BLM. (Dkt. 95 at 9-11.) Black Dog argues BLM has singled it out solely in retaliation for
its efforts to obtain information concerning the under-utilization of the resources. Again,
the Administrative Record does not support Black Dog’s characterization of BLM’s
actions. Black Dog’s claims concern, in one instance, an exchange of letters in October of
2007.8 BLM issued a letter to Black Dog on October 1, 2007 concerning its compliance
with applicable laws and regulations for permit holders. (FS 4210.) On October 23, 2007,
Black Dog’s representative responded by letter questioning whether Black Dog was in
violation as well as the reasoning behind the policy BLM had alleged it violated. (FS
4212-15.) A similar circumstance of alleged false accusations by the BLM is cited by
Black Dog as occurring in April of 2008. Black Dog also contends the BLM refused to
allow him to provide comments concerning outfitting opportunities on the South Fork of
the Snake River in November of 2007, failed to comply with all of its FOIA requests, and
improperly relied upon and misrepresented facts surrounding the capacity study. (Dkt. 95
at 11-13.) These arguments are simply not supported by the Administrative Records filed
in this case. Black Dog was allowed to comment before the Defendant agencies. (FS
4090, 4109, 4113, 4124, 4165, 4171, 4277) (BlackDog 482-90, 2463-98, 2505-2515,

8

The Administrative Record contains other documents related to the alleged violations of
regulations by Black Dog (Black Dog 2371-2399.)

2521, 2539, 3802.) The Defendants responded to Black Dog’s FOIA requests. (FS 44854522) (BlackDog 2499, 2510, 2519, 2527, 2530, 2533, 2545, 2580, 2582.) Finally,
Defendants did not misrepresent the status of the capacity study. (FS 4058, 4174, 4255)
(BlackDog 361-406, 202-2025, 2044-2242, 2542-44.) Because the allegations are
contrary to the Administrative Records, the Court finds Black Dog has failed to point to
genuine issues of material fact supporting its First Amendment claim. The Motions for
Summary Judgment are granted on this claim.
4.

Violation of Equal Protection
The Equal Protection Claim is brought under the Fifth and Fourteenth

Amendments alleging disparate treatment between Black Dog and the outfitters holding
permits/licences on the South Fork. (Dkt. 56, p. 26.) “Both the Equal Protection Clause
and the APA prohibit agencies from treating similarly situated petitioners differently
without providing a sufficiently reasoned justification for the disparate treatment.”
Muwekma Ohlone Tribe v. Kempthorne, 452 F.Supp.2d 105, 115 (D.D.C. 2006) (citing
Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1102-03 (D.C. Cir. 2005) (“To prevail on
[its] equal protection claim, [a plaintiff must] demonstrate that [it] was treated differently
than similarly situated [parties] and that the [agency's] explanation does not satisfy the
relevant level of scrutiny.”) (citations omitted).
In its Equal Protection Claim Black Dog argues it applied for and was denied four
outfitter permits and has been subject to disparate treatment. (Dkt. 95 at 13.) Black Dog’s
claim is that it is similar to the current permit holders but that it has been treated

differently from them, by being denied permits and reprimanded by Defendants, without
any reasoned justification. Black Dog’s allegations liken it to “other permit holders” and,
specifically, to the two outfitters who hold the majority of the existing allocated permits.
(Dkt. 56, pp. 26-27.) In doing so, Black Dog argues it has not been treated in an equal
manner to the other “similarly situated” outfitters who, Black Dog asserts, Defendants
have treated more favorably than it. (Dkt. 95 at 14.)
Defendants counter arguing this claim should be summarily dismissed because
Black Dog has failed to show they intentionally, and without rational basis, treated it
differently from others who are similarly situated. (Dkt. 91 at 18.) Again, Defendants
point out, no new permits have been issued to any outfitters during the time frame in
which Black Dog applied for these four permits. (Dkt. 91 at 19.) Before any new permits
are available, the Defendants state, a visitor capacity study must be completed to
accurately assess the need, if any, for such new permits. Thus, Black Dog was not denied
any permits. There simply were no permits available.
Both Defendants also point out that Black Dog is not in the same class as other
licensed outfitters because Black Dog is not a holder of the outfitters licenses it seeks for
the South Fork of the Snake River. (Dkt. 92 at 16) (Dkt. 109 at 5.) Instead, IOGLB
argues, Black Dog falls into a class of “potential applicants” who desire to obtain a
license. Black Dog has not demonstrated how it was treated differently from others who
were similarly situated. Defendants maintain no Equal Protection violation occurred. As
an outfitter who seeks a license/permit on the South Fork, Black Dog has not been treated

disparately. Just the opposite, Black Dog was treated the same as every other outfitter
who applied for South Fork permits/licenses as they were all denied universally based on
the fact that no such licenses are available. (Dkt. 92 at 17-18) (Dkt. 109 at 5.)
It is true that Black Dog currently holds certain permits and licenses to provide
outfitting services on the Snake River in Idaho. However, Black Dog does not hold the
same permits and licenses as other outfitters. Those are the permits and licenses Black
Dog seeks to acquire. Thus, Black Dog is not in the same class as current permit holders
but is instead situated within the same class as other applicants for those permits and
licenses. It is undisputed that Defendants have denied all applications and requests for
issuance of new or additional permits and licenses which Black Dog seeks here. As such,
Black Dog was not treated differently by Defendants from any other permit applicant.
The Court concludes Black Dog has failed to show a genuine issue of material fact exists
that its Equal Protection rights were violated.
In addition, Black Dog’s Amended Complaint raises the “class of one” argument.
(Dkt. 56, p. 26.) Successful Equal Protection claims have been recognized when brought
by a “class of one” where the plaintiff has alleged that he has been intentionally treated
differently from others similarly situated and that there is no rational basis for the
difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(Section 1983 action). The Ninth Circuit, however, has indicated that such actions are
disfavored because they threaten to “provide a federal cause of action for review of
almost every executive or administrative government decision.” Engquist v. Or. Dept. of

Agric., 478 F.3d 985, 993 (9th Cir. 2007) (discussing a case alleging employment
discrimination by the government). For the same reasons articulated above, the Court
finds this case is not one in which Black Dog can be characterized as being in a “class of
one.” Black Dog has not been treated differently from others similarly situated.
Defendants have not issued any requests or applications for permits and licenses to any
new applicants; Black Dog included. The Motions for Summary Judgment are granted as
to this claim.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Federal Defendants’
Motion for Summary Judgment (Dkt. 91) is GRANTED and the IOGLB’s Motion for
Summary Judgment (Dkt. 92) GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Modify and Supplement
Administrative Record (Dkt. 96, 100) are DENIED.

DATED: May 30, 2012

Honorable Edward J. Lodge
U. S. District Judge