Leigh v. Salazar et al

Filing 74

ORDER GRANTING in part and DENYING in part Defendants' 70 Motion to Dismiss. The motion is GRANTED as to plaintiff's third claim for relief and DENIED as to plaintiff's second claim for relief. This matter is referred to the magistrate judge for the resetting of the scheduling order in this case. Signed by Judge Howard D. McKibben on 03/26/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAURA LEIGH,

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Plaintiff,
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vs.
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KEN SALAZAR, et al.,
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Defendants.
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_________________________________ )

3:11-cv-00608-HDM-WGC
ORDER

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Before the court is the defendants’ partial motion to dismiss,
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or in the alternative for judgment on the pleadings with regard to,
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the second and third claims for relief of plaintiff’s second
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amended complaint (#70).

Plaintiff has opposed (#72), and

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defendants have replied (#73).
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Once the pleadings have closed – “but early enough not to
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delay trial — a party may move for judgment on the pleadings.”
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Fed. R. Civ. P. 12(c).

“Judgment on the pleadings is properly

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granted when, accepting all factual allegations in the complaint as
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true, there is no issue of material fact in dispute, and the moving
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party is entitled to judgment as a matter of law.”

Chavez v.

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United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (internal
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punctuation omitted).
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A motion for judgment on the pleadings seeking dismissal based

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on a lack of subject matter jurisdiction is analyzed under the same

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standard applied to motions to dismiss under Federal Rule of Civil

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Procedure 12(b)(1).

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Or. 2012); 5C Charles A. Wright & Arthur R. Miller, Federal

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Practice and Procedure, § 1367, at 221 (3d ed. 2004).

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12(b)(1), the plaintiff bears the burden of establishing subject

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matter jurisdiction.

Hexom v. Or. Dep’t of Transp., 177 F.3d 1134,

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1135 (9th Cir. 1999).

In determining whether the court has subject

Or. Wild v. Connor, 2012 WL 3756327, at *1 (D.

Under Rule

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matter jurisdiction, the court may consider evidence outside of the

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complaint.

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(9th Cir. 2004).

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

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Plaintiff’s second claim challenges defendants’ use of

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helicopters to round up horses in the Jackson Mountain Herd

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Management Area during the “foaling season,” which runs from March

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1 to June 30 of each year.

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improper treatment of the wild horses by defendants.1 (See #42-1 at

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¶ 13; ¶ 94).

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of helicopters during the foaling season except in emergency

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situations.

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during the foaling season, and nothing else, plaintiff’s claim goes

It contains no other allegations of

Bureau of Land Management (“BLM”) policy forbids use

As plaintiff’s claim challenges use of helicopters

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While plaintiff’s second claim also contains assertions of First
Amendment violations, plaintiff did not separately plead a First Amendment
claim, nor did she invoke this court’s jurisdiction under any statute for
asserting such rights. (See Sec. Am. Compl. 6). Rather, she invokes this
court’s jurisdiction under only the Administrative Procedures Act, 5 U.S.C.
§§ 701 et seq. Further, the court notes that any First Amendment claim does
not contain sufficient factual allegations to satisfy the pleading standards
of Twombly and Iqbal. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937,
1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, it recites only legal conclusions or vague and general factual
allegations that do not sufficiently apprise defendants of the nature of the
claim. (See Sec. Am. Compl. ¶¶ 17, 97, 101).

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only to the emergency portion of the Jackson Mountain gather.

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Plaintiff does contest this construction of her claim.

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The Jackson Mountain Environmental Assessment (“EA”)2

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authorized a round-up of excess wild horses to begin in summer 2012

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and followup gathers for ten years after that.

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emergency conditions on the range, the EA was modified to advance

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the starting date of the round-up from July 1, 2012, to a period in

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June 2012.

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(“Decision Record”)).

Because of the

(Def. Mot. Ex. A (Full Force and Effect Decision
Since the foaling season ends on June 30,

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the EA essentially authorized an emergency round-up in Jackson

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Mountain during the month of June.

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this emergency round-up is now complete, and because no further

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emergency round-ups are authorized by the EA or the Decision

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Record, plaintiff’s claims for injunctive and declaratory relief

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are moot.

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emergency round-ups and that such are likely to recur within the

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EA’s ten-year effective period.

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Defendants argue that because

Plaintiff responds that the EA authorizes further

“The mootness doctrine ‘requires that an actual, ongoing

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controversy exist at all stages of federal court proceedings.’”

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Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012) (quoting Pitts

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v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011)).

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“A case becomes moot—and therefore no longer a ‘Case’ or

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The Jackson Mountain EA is available at:

https://www.blm.gov/epl-front-office/projects/nepa/30004/37311/39115/defa
ult.jsp?projectName=DOI-BLM-NV-W030-2012-0005-EA
Plaintiff has not objected to the court’s consideration of the EA or the
Full Force and Effect Decision (Exhibit A to defendants’ motion), and given
that mootness is a question of subject matter jurisdiction, see Wolfson v.
Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010), it is appropriate for the
court to consider documents outside the pleadings.

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‘Controversy’ for purposes of Article III—‘when the issues

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presented are no longer ‘live’ or the parties lack a legally

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cognizable interest in the outcome.’”

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— U.S. —, 133 S. Ct. 721, 726 (2013).

Already, LLC v. Nike, Inc.,

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A claim “is not moot if any effective relief may be granted.”

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Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th

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Cir. 2012).

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relief is “whether the facts alleged, under all the circumstances,

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show that there is a substantial controversy, between parties

The test for mootness of a claim for declaratory

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having adverse legal interests, of sufficient immediacy and reality

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to warrant the issuance of a declaratory judgment.”

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Legal Found. v. Badgley, 309 F.3d 1166, 1174-75 (9th Cir. 2002)

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(quoting Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122

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(1974)).

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Biodiversity

Plaintiff’s complaint seeks declaratory and injunctive relief

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as to the use of helicopters during the foaling season.

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by defendants, the EA specifically authorized the use of

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helicopters during foaling season only once, in June 2012.

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round-up has since been completed.

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authorized to take place for ten years after that time, the EA

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authorized those round-ups to occur between November and February –

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outside of the foaling season.

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improbable that in the face of an emergency on the range BLM will

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again determine that the environmental effects of an emergency

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round-up have been “covered sufficiently by” the Jackson Mountain

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EA.

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claim would not be moot.

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will again face emergency conditions on the Jackson Mountain range

That

While subsequent round-ups are

(EA § 2.1.3).

See 43 C.F.R. § 46.300(a)(2).

As noted

However, it is not

Should that occur, plaintiff’s

Given the reasonable possibility that BLM

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during the effective period of the EA, the court cannot at this

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time, without further discovery, conclude that plaintiff’s claim is

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moot.

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pleadings with respect to plaintiff’s second claim for relief is

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denied.

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Accordingly, the defendants’ motion for judgment on the

Plaintiff’s third claim for relief broadly seeks declaratory

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judgment.

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declaratory judgment with respect to the claims asserted in her

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first and second causes of action and does not assert a

Plaintiff asserts that this claim merely seeks

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programmatic challenge.

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declaratory judgment in her prayer for relief, her third claim is

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duplicative and will therefore be dismissed.

Because plaintiff includes a request for

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For the foregoing reasons, the defendants’ motion for judgment

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on the pleadings (#70) is GRANTED as to plaintiff’s third claim for

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relief and DENIED as to plaintiff’s second claim for relief.

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matter is referred to the magistrate judge for the resetting of the

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scheduling order in this case.

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IT IS SO ORDERED.

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DATED: This 26th day of March, 2013.

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____________________________
UNITED STATES DISTRICT JUDGE

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This