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Colorado Wild Horse and Burro Coalition, Inc. v. Kempthorne

November 30, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In the face of a fully-briefed motion to dismiss filed by the Defendants, sued in their official capacities as federal officers,*fn1 the Plaintiffs seek jurisdictional discovery. The Defendants seek a Protective Order denying discovery. The Court will deny Plaintiffs' motion for jurisdictional discovery and deny Defendants' motion for a Protective Order as moot.


Plaintiffs initially sought a temporary restraining order to prevent the Defendants from gathering and removing certain wild horses from the West Douglas Herd Area and/or the Piceance-East Douglas Herd Management Area in northwestern Colorado. See Pls.' Mot. for Temporary Restraining Order [Dkt. #5]. Plaintiffs asserted that Defendants were violating the Wild Free Roaming Horses and Burros Act ("WFHBA"), 16 U.S.C. § 1331 et seq. After a hearing on September 29 and October 5, 2006, the Court denied the motion and ordered the parties to confer and advise the Court whether the case would proceed. See October 5, 2006 Minute Entry Order. Plaintiffs filed an Amended Complaint on December 6, 2006, seeking a declaratory judgment on the legality of BLM's gather and removal of wild horses from the Piceance-East Douglas Heard Management Area and the West Douglas Herd Area in September and October 2006. See Pls.' Am. Compl. [Dkt. #24]. Plaintiffs also sought declaratory judgment on the legality of BLM Instruction Memorandum ("IM") 2002-95, the 1981 Herd Management Area Plan ("1981 HMAP"), and the 1997 Resource Management Plan ("1997 RMP"). Id. Finally, Plaintiffs sought declaratory judgment on the legality of a proposed amended Resource Management Plan ("RMP"), currently pending review by BLM, to remove all remaining wild horse herds from the West Douglas Herd Area. Id.

On December 29, 2006, the Defendants moved to dismiss the Amended Complaint because:

(1) the Plaintiffs' claims related to the gather/removals conducted in the Piceance-East Douglas [Herd Management Area] and the West Douglas [Herd Area] are moot; (2) Plaintiffs' claims related to the "Instruction Memorandum," 1981 HMAP, and 1997 RMP, are time-barred under 28 U.S.C. § 2401 and fail to qualify as reviewable "final agency actions" under the Administrative Procedure Act ("APA) [5 U.S.C. §§ 701-706]; and (3) Plaintiffs have no cognizable claim under the APA as to the proposed decision to remove all horses from the West Douglas Herd Area.

Defs.' Mot. to Dismiss [Dkt. #27] at 2. Plaintiffs' filed their Opposition on February 2, 2007. See Pls.' Mem. in Opp'n to Defs.' Mot. to Dismiss [Dkt. # 29]. Defendants' Reply in Support of the Motion to Dismiss was filed on March 16, 2007. See Defs.' Reply [Dkt. #35].

Plaintiffs filed a Motion for Leave to Conduct Discovery on Jurisdictional Issues Raised by Defendants' Motion to Dismiss and Relating to Defendants' Position Regarding the Legality of Zeroing Out a Wild Horse Herd Area and an accompanying memorandum in support of its motion ("Pls.' Mem.") on June 25, 2007. See Dkt. #36. The Federal Defendants responded with a Motion for Protective Order*fn2 and memorandum in support of its motion ("Defs.' Mem.") on July 18, 2007. See Dkt. #38. Thereafter, Plaintiffs filed an opposition and reply ("Pls.' Reply") on August 6, 2007. See Dkt. #44. Finally, Defendants' filed their Reply in Support of Motion for Protective Order ("Defs.' Reply") on August 10, 2007, making the motions ripe for adjudication. See Dkt. #45. In the meantime, on July 9, 2007, by minute entry order, the Court denied the Defendants' Motion to Dismiss without prejudice as moot in light of the outstanding issues regarding additional discovery and the possibility that the parties would thereafter revise their previous positions. In addition, the Court ordered that "[i]f, after the discovery issues are fully resolved, Defendants believe their Motion remains accurate and viable, they may move to resuscitate it without re-filing." See July 9, 2007 Minute Entry Order.

On October 22, 2007, the Defendants filed a Status Report on the West Douglas Herd Area, notifying the Court that the Colorado State Director of BLM, on October 10, 2007, approved Mr. Walter's proposed decision to remove all wild horses from the West Douglas Herd Area. See Defs.' Status Report on West Douglas Herd Area [Dkt. # 47] at 1.

Before BLM gathers any horses from the herd area, the White River Field Office must prepare a gather plan and related Environmental Assessment ("EA") and issue a final decision, which will be subject to public comment. BLM anticipates that the earliest any gathers, if approved, could occur is August 2008.

Id. (citations to Second Declaration of Kent Walter omitted).


This case is brought under the APA, which generally limits the parties to a review of the administrative record developed by the agency whose final action is being challenged. See Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-421 (1971). "The focal point for judicial review should be the administrative record already in existence, not some new record completed initially in the reviewing court." Environmental Def. Fund v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981). If the record is too scant for a decision to be made, courts will, "except in rare circumstances," remand to the agency for additional investigation or explanation. Florida Power & Light Co. v. United States Nuclear Regulatory Comm'n, 470 U.S. 729, 744 (1985); see also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996) ("Generally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.").

"[I]f a party demonstrates that it can supplement its jurisdictional allegations through discovery, then jurisdictional discovery is justified." GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C. Cir. 2000). The plaintiff in such a case must make a "detailed showing of what discovery it wishes to conduct or what results it thinks such discovery would produce." United States v. Philip Morris, 116 F. Supp. 2d 116, 130 n. 16 (D.D.C. 2000). Discovery is properly denied in connection with a motion to dismiss on jurisdictional grounds when the court "do[es] 'not see what facts additional discovery could produce that would affect ...

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