White et al v. Secretary of the United States Department of the Interior et al

Filing 32

ORDER: The Court ADOPTS Magistrate Judge Sullivans Findings and Recommendation 22 and, therefore, GRANTS Defendants Motion 11 to Dismiss Plaintiffs Complaint in its entirety. The Court also DENIES Plaintiffs Motion 25 for Leave to File Amended Complaint. The Court, therefore, DISMISSES Plaintiffs Complaint 1 with prejudice. Signed on 04/07/2015 by Judge Anna J. Brown. See attached 7 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

EASON LAND CO., LLC, an Oregon
limited liability company; JESSE
D. WHITE; and PAMELA J. WHITE,
Plaintiffs,
v.
SECRETARY OF THE UNITED STATES
DEPARTMENT OF THE INTERIOR;
DIRECTOR OF THE BUREAU OF LAND
MANAGEMENT; DISTRICT MANAGER FOR
THE VALE DISTRICT OF THE BUREAU
OF LAND MANAGEMENT; FIELD MANAGER
FOR THE JORDAN FIELD OFFICE, VALE
DISTRICT OF THE BUREAU OF LAND
MANAGEMENT; and OREGON STATE
DIRECTOR OF THE BUREAU OF LAND
MANAGEMENT,
Defendants.

1 - ORDER

2:14-cv-00951-SU
ORDER

BROWN, Judge.
Magistrate Judge Patricia Sullivan issued Findings and
Recommendation (F&R) (#22) on February 19, 2015, in which she
recommends the Court grant Defendants’1 Motion (#11) to Dismiss.
Plaintiffs filed timely Objections (#24) in this matter and also
filed a Motion (#25) for Leave to File Amended Complaint.

The

matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)
and Federal Rule of Civil Procedure 72(b).
I.

Findings and Recommendation
When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b)(1).

See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc).
This Court has carefully considered Plaintiffs’ Objections
and concludes the Objections do not provide a basis to modify the
Findings and Recommendation.

The Court also has reviewed the

pertinent portions of the record de novo and does not find any
error in the Magistrate Judge's Findings and Recommendation.
Accordingly, on this record the Court adopts Judge
Sullivan’s Findings and Recommendation.

1

The F & R refers to Defendants collectively as “BLM.”

2 - ORDER

II.

Motion for Leave to Amend Complaint
Federal Rule of Civil Procedure 15(a) provides a party may

amend a pleading after a responsive pleading has been filed only
by leave of court unless the opposing party consents to the
amendment.

Rule 15(a), however, also provides leave to amend

"shall be freely given when justice so requires."
to be applied with "extreme liberality."

This policy is

Moss v. United States

Secret Svc., 572 F.3d 962, 972 (9th Cir. 2009).
The Supreme Court has recognized several factors that a
district court should consider when determining whether justice
requires the court to grant leave to amend.

Those factors

include “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party . . . ,
[and] futility of the amendment.”

Carvalho v. Equifax Info.

Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010)(quoting Foman
v. Davis, 371 U.S. 178, 182 (1962)).

The factor that carries the

greatest weight is whether the amendment will cause the opposing
party prejudice.

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

1048, 1052 (9th Cir. 2003).

"Absent prejudice or a strong

showing of any of the remaining Foman factors, there exists a
presumption under Rule 15(a) in favor of granting leave to
amend."

Id.

"Delay alone no matter how lengthy is an

insufficient ground for denial of leave to amend."
3 - ORDER

United States

v. Webb, 655 F.2d 977, 980 (9th Cir. 1981).

See also Quantum

Tech. Partners II, L.P. v. Altman Browning and Co., No. 08-CV376-BR, 2009 WL 1795574, at *19 (D. Or. June 23, 2009)(aff’d,
2011 WL 2214659 (9th Cir. Jun 07, 2011))(same).

The party who

opposes amendment bears the burden to show prejudice.

Adam v.

Hawaii, 235 F.3d 1160, 1164 (9th Cir. 2000)(overruled on other
grounds)(citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187
(9th Cir. 1987)).
A proposed amendment to a complaint "'is futile only if no
set of facts can be proved under the amendment . . . that would
constitute a valid and sufficient claim.'"

Sweaney v. Ada Cnty.,

Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997)(quoting Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).

See

also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th
Cir. 2008)(proposed amendment to a complaint is futile when the
“complaint could not be saved by any amendment.”).

A plaintiff

should be afforded an opportunity to test his claim on the merits
rather than on a motion to amend unless it appears beyond doubt
that the proposed amended complaint would be dismissed for
failure to state a claim under Federal Rule Civil Procedure
12(b)(6).

Miller, 845 F.2d at 214.

See also AmerisourceBergen

Corp. v. Dialysist W., Inc., 465 F.3d 946, 957 (9th Cir. 2006).
Although Plaintiffs maintain Magistrate Judge Sullivan erred
when she recommended dismissal of their Complaint (#1),
4 - ORDER

Plaintiffs now move to amend their Complaint in an attempt to
cure any deficiencies in the original Complaint.

In a proposed

amended complaint attached to Plaintiffs’ Motion to Amend,
Plaintiffs plead significant additional factual material to
support their claim that Defendants improperly implemented the
BLM’s Final Decision to retrofit or to remove 20 reservoirs on
BLM land for the purpose of complying with Oregon water law and
not interfering with Plaintiffs’ senior, downstream water rights.
In their proposed amended complaint, Plaintiffs retain their
claims for a writ of mandamus, declaratory relief, and relief
pursuant to the Administrative Procedure Act (APA), 5 U.S.C.
§ 706(1).

Plaintiffs, however, abandon their claim brought in

their original Complaint under § 706(2) of the APA.
Defendants, in turn, contend Plaintiffs’ Motion to Amend
should be denied because Plaintiffs do not and cannot identify
in their remaining APA claim any action that Defendants have
taken in which the “‘agency has ignored a specific legislative
command.’”

Defs.’ Resp. (#31) to Objections to F&R at 19

(quoting Hells Canyon Pres. Council v. U.S. Forest Serv., 593
F.3d 923, 932 (9th Cir. 2010)).
After a thorough review of Plaintiffs’ proposed amended
complaint, the Court concludes Plaintiffs’ proposed amendment

5 - ORDER

would be futile.

As Judge Sullivan noted, because neither

mandamus (28 U.S.C. § 1361) nor the Declaratory Judgment Act (28
U.S.C. § 2201) provide a stand-alone waiver of sovereign
immunity, Plaintiffs’ claim under § 706(1) of the APA is the only
possible authority to support Plaintiffs’ claim for waiver of
sovereign immunity in Plaintiffs’ proposed amended complaint.
F&R (#22) at 10-11.
The additional factual allegations in Plaintiffs’ proposed
amended complaint are primarily concerned with the implementation
of the BLM's Environmental Assessment and Final Decision.

As

Judge Sullivan concluded in the F&R adopted herein, however,
“implementation of an agency action is not subject to judicial
review,” and Plaintiffs have failed to allege or to identify any
nondiscretionary action mandated by legislative command that
Defendants have failed to perform timely.
n.10.

F&R (#22) at 16-19 and

Thus, Plaintiffs’ claim under § 706(1) is not viable even

as pled in Plaintiffs’ proposed amended complaint.

Plaintiff has

not made a showing that any other unpled claims could provide a
valid waiver of sovereign immunity.
Accordingly, because Plaintiffs have failed to plead a
viable claim under § 706(1) of the APA and because neither
Plaintiffs’ claims for mandamus nor declaratory relief provide a
stand-alone waiver of sovereign immunity, the Court concludes on
this record that Plaintiffs’ proposed amendment to their

6 - ORDER

Complaint would be futile.

CONCLUSION
For these reasons, the Court ADOPTS Magistrate Judge
Sullivan’s Findings and Recommendation (#22) and, therefore,
GRANTS Defendants’ Motion (#11) to Dismiss Plaintiffs’ Complaint
in its entirety.

The Court also DENIES Plaintiffs’ Motion (#25)

for Leave to File Amended Complaint.

The Court, therefore,

DISMISSES Plaintiffs’ Complaint (#1) with prejudice.
IT IS SO ORDERED.
DATED this 7th day of April, 2015.

/s/ Anna J. Brown
____________________________
ANNA J. BROWN
United States District Judge

7 - ORDER