Northern Arapaho Tribe et al v. United States Fish & Wildlife Service Director et al

Filing 62

OPINION and ORDER by the Honorable Alan B Johnson denying 59 >Motion for Leave to file Second Amended Complaint, filed by Plaintiff Northern Arapaho Tribe. (Court Staff, sth) (Main Document 62 replaced on 2/28/2013) (Court Staff, sth).

U.S. D! ::. ':: ., -~ COURT
Dls~·::.~cT Of WYOMn~G

/Ul3 FEB 28 PrJ 12 07
IN THE UNITED STATES DISTRICT COUR'JSTEPl-IAN HARRIS. CLERK
FOR THE DISTRICT OF WYOMING

CHEYENNE

NORTHERN ARAPAHO TRIBE, on its own
behalf and on behalf of its members, and
DARRELL O'NEAL, Chairman, Northern
Arapaho Business Council, in his official and
individual capacities,
Plaintiffs,
Case No. 11-CV-347-ABJ

v.
DANIEL M. ASHE, Director, United States
Fish and Wildlife Service, and MATT
HOGAN, Assistant Regional Director,
Region 6, Migratory Birds and State
Programs, in their official capacities,
Defendants.

OPINION DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT

In 2009, Plaintiffs Northern Arapaho Tribe and the chairman of the Tribe's business
council applied to the United States Fish and Wildlife Service for a permit that would allow
Plaintiffs to take 1 eagles for use in their religious ceremonies. Over two years later (and still
without a permit), Plaintiffs filed a complaint against Defendants Daniel Ashe and Matt Hoganofficials within Fish and Wildlife-alleging that Fish and Wildlife had unlawfully delayed
1

"Take means pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb." 50
C.F.R. § 22.3 (2011).

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issuing the permit. After Plaintiffs had filed their complaint, Fish and Wildlife issued Plaintiffs a
permit allowing them to take two adult bald eagles per year within Wyoming. However, the
permit prohibited Plaintiffs from taking eagles within the boundaries of the Wind River
Reservation, a Reservation the Northern Arapaho share with another federally-recognized Indian
tribe, the Eastern Shoshone. Fish and Wildlife excluded the Reservation from the permit to
accommodate the Eastern Shoshone's cultural and religious objections to eagle take within the
Reservation.
On March 30, 2012, Plaintiffs filed an amended complaint, claiming that Fish and
Wildlife's refusal to allow eagle take within the Reservation violated the Religious Freedom
Restoration Act (RFRA), the Free Exercise Clause, and the Administrative Procedure Act. On
May 31, 2012, Plaintiffs filed a motion for judgment on the pleadings with respect to their RFRA
claims, noting in their memorandum in support that "[d]efendants' denial of the [tribe's] permit
application creates Establishment Clause problems." Pls.' Mem. 14 n.19, ECF No. 30. The Court
ultimately ruled against Plaintiffs and granted summary judgment in favor of Defendants on the
RFRA claims.
Now, nearly a year after filing their amended complaint and over eight months after
noting that Fish and Wildlife's permitting decision "creates Establishment Clause problems,"
Plaintiffs have filed a motion to amend their complaint by adding an Establishment Clause claim.
Defendants urge the Court to deny the motion, arguing that Plaintiffs waited too long to add the
Establishment Clause claim. For the reasons stated below, the Court agrees and therefore denies
Plaintiffs' motion.

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The legal principles governing a Rule 15(a)(2) motion apply here. That rule provides that,
unless a party is amending as a matter of course, "a party may amend its pleading only with the
opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Whether to grant
leave to amend lies within the Court's discretion. By/in v. Billings, 568 F.3d 1224, 1229 (lOth
Cir. 2009). "The court should freely give leave when justice so requires," Fed. R. Civ. P.
15(a)(2), and district courts have "wide discretion to recognize a motion for leave to amend in
the interest of a just, fair or early resolution of litigation," By/in, 568 F.3d at 1229. "Refusing
leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendments." Id.
The Tenth Circuit has held that "[u]ntimeliness alone may be a sufficient basis for denial
of leave to amend." Las Vegas Ice & Cold Storage Co. v. Far W Bank, 893 F.2d 1182, 1185
(1Oth Cir. 1990). It also has held that if a party moving to amend knew or should have known the
facts giving rise to the new claim but failed to include the claim in the complaint, then the district
court may deny the motion. Id
With these principles in mind, the Court denies Plaintiffs' motion because they waited
too long to amend their complaint. Plaintiffs knew or should have known the facts underlying an
Establishment Clause claim when they filed their amended complaint nearly a year ago. And
Plaintiffs undoubtedly knew about the Establishment Clause claim by May 31, 2012, because on
that date they filed a memorandum stating that "(d]efendants' denial of the [tribe's] permit
application creates Establishment Clause problems." Pls.' Mem. 14 n.l9, ECF No. 30. Yet
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Plaintiffs waited over eight months from the time they clearly knew about the Establishment
Clause claim to file the present motion. That's simply too long a wait. The Court therefore
DENIES Plaintiffs' motion for leave to amend their complaint (ECF No. 59) based on undue

delay.

~

Dated this

2.. ¥ day of February, 2013.

7
Alan B. Johnson
United States District Judge

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