Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 1 of 26

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1 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 1 of 26 IGNACIA S. MORENO Assistant Attorney General BRIAN M. COLLINS Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC Ph: Fax: Brian.m.collins@usdoj.gov ATTORNEY FOR FEDERAL DEFENDANT UNITED STATES DISTRICT COURT DISTRICT OF NEVADA WILDEARTH GUARDIANS Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE Defendant. 2:12-CV MMD-JAL DEFENDANT'S MOTION TO DISMISS Defendant, the United States Department of Agriculture, Animal and Plant Health Inspection Service, moves to dismiss Plaintiff s Complaint pursuant to rules 12(b(1 and 12(b(6 of the Federal Rules of Civil Procedure. Plaintiff lacks standing to bring any of the claims alleged in the Complaint because they have failed to sufficiently allege an injury-in-fact, and, under the circumstances of this case, Plaintiff s injuries cannot be redressed by any relief

2 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 2 of 26 available in this litigation. Two of Plaintiff s claims are barred by the statute of limitations. Finally, Plaintiff has failed to state a cognizable claim under the Administrative Procedure Act for violations of the National Environmental Policy Act or the Wilderness Act. As a result, Plaintiff s Complaint must be dismissed in its entirety. This Motion is supported by the accompanying memorandum of points and authorities. Respectfully submitted this 17th day of July /s/ Brian M. Collins BRIAN M. COLLINS Trial Attorney U.S. Department of Justice Environment & Natural Resources Division - 2 -

3 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 3 of 26 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff asserts a broad challenge of the United States Department of Agriculture, Animal and Plant Health Inspection Service s ( APHIS Wildlife Services ( WS predator damage management ( PDM program in Nevada. The challenge fails because Plaintiff s challenge to the 1994/1997 Programmatic Environmental Impact Statement ( PEIS is not timely, and Plaintiff has not established that they have standing to bring this action. Moreover, they assert a programmatic challenge without jurisdictional basis in the Administrative Procedure Act ( APA, and, Plaintiff cannot state a viable claim for violations of the National Environmental Policy Act ( NEPA or the Wilderness Act. Plaintiff s complaint should be dismissed for lack of standing, because Plaintiff has failed to demonstrate that any of Defendants actions have caused a specific harm to a concrete interest of Plaintiff. Additionally, No matter the outcome of the litigation in this Court, Plaintiff s alleged injuries will not be redressed because Nevada s Department of Wildlife is authorized to carry out predator damage management activities and has stated its intention to do so if the federal program ceases. Plaintiff has failed to show that their requested relief would redress any possible harms stemming from the federal program of predator management, and therefore they cannot establish that they have standing to invoke the Court s jurisdiction. Moreover, the First and Second Claims for Relief of Plaintiff s Complaint which generically challenge APHIS-WS overall program of predator damage management should be dismissed for lack of subject matter jurisdiction. First, the challenge to the 1994/1997 PEIS is untimely. Second, there is no remaining federal action under the 1994/1997 PEIS, and no discrete and mandatory duty to supplement the information in the PEIS under NEPA. Finally, - 3 -

4 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 4 of 26 Plaintiff has failed to comply with the APA s requirement that Plaintiff identifies a discrete agency action necessary to bring a challenge under the APA. Instead, the Complaint demonstrates that Plaintiff is bringing a broad-based programmatic challenge to the implementation of the APHIS-WS nationwide predator damage management program in the entire United States. Such challenges are specifically prohibited under the Supreme Court's decisions in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990, and Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, (2004 (hereinafter SUWA. Finally, Plaintiff s Fifth Claim for Relief should be dismissed because Plaintiff has failed to assert a valid APA claim challenging APHIS-WS Nevada predator damage management program under the Act. The Wilderness Act and Ninth Circuit case law clearly allow the predator damage management activities conducted by APHIS-WS. Accordingly, Plaintiff s entire complaint must be dismissed. II. FACTUAL BACKGROUND Under various acts of Congress, the Secretary of Agriculture is charged with carrying out wildlife control programs necessary to protect the Nation s agricultural resources. See Act of March 2, 1931, as amended, 46 Stat , 7 U.S.C b. The statute provides, among other things, that the Secretary is to conduct a program of wildlife services with respect to injurious animal species and take any action the Secretary considers necessary in conducting the program. 7 U.S.C Under the Rural Development, Agriculture and Related Agencies Appropriations Act of 1988, the Secretary of Agriculture is also authorized to conduct activities to control nuisance mammals and birds and those mammal and bird species that are reservoirs for zoonotic diseases. 7 U.S.C. 426c - 4 -

5 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 5 of 26 Under the Acts, the Secretary of Agriculture may carry out these wildlife control programs alone, or may enter into cooperative agreements with states, local jurisdictions, individuals, organizations, institutions, and public and private agencies that may fund and assist in carrying out such programs. 7 U.S.C. 426, 426c. The Secretary has delegated the authorities under these statutes to the Animal and Plant Health Inspection Service ( APHIS. Within that agency, the authority resides with the Wildlife Services program ( WS or Program. 7 C.F.R. 2.22(a(2(xxxviii and (a(2(xxix; 7 C.F.R. 2.80(a(41-(42; 7 C.F.R and APHIS works throughout the country to resolve conflicts involving animals preying on, or harassing, livestock and wildlife, damaging property, or threatening human health and safety through the Program. United States Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services, Final Environmental Assessment, Predator Damage Management in Nevada, June 2011 (hereinafter EA at 1 (a true and correct copy of the EA is attached hereto as Exhibit A. The Program is integral to protecting public health and safety as well as the nation s agricultural, industrial, and natural resources from harm by dangerous native predators as well as invasive species. EA at 2. To carry out the Program, WS works in concert with Federal, state, and local agencies as well as private organizations and individuals to identify harmful predators and mitigate predator damage. EA at 1. WS issued a Final Programmatic Environmental Impact Statement ( PEIS or 1994/1997 PEIS on the national Wildlife Services program in 1994 and revised it in EA at 27. In Nevada, WS is implementing Predator Damage Management ( PDM activities to focus on the protection of agricultural resources, livestock, public and private property, and natural resources including wildlife such as sage grouse, deer, elk, antelope, and bighorn sheep

6 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 6 of 26 EA at To conduct PDM activities in Nevada, APHIS-WS works closely with the Nevada Department of Agriculture, and the Nevada Division of Resource Protection which, collectively form the Nevada Wildlife Services Program ( NWSP. The NWSP in turn works with the Nevada Department of Wildlife ( NDOW, which has primary responsibility for managing all protected and classified wildlife in Nevada, except for federally listed threatened and endangered ( T&E species. EA at 33. APHIS-WS prepared an Environmental Assessment in 1999 to analyze its predator damage management activities in Nevada, and that EA was amended in EA at 28. In June 2011, APHIS-WS issued the EA and Finding of No Significant Impact ( FONSI at issue here, and the final decision based on this analysis supersedes the 2004 EA and FONSI. Id. Under State statute (NRS , NDOW is responsible for controlling wildlife causing damage to personal property or endangering personal safety. EA at App. C (p. C-163 (letter from Nevada Dept. of Wildlife. In order to discharge this responsibility NDOW utilizes the services of APHIS-WS personnel to control wildlife that is causing damage and to protect the public from dangerous animals. EA at C-163. If APHIS-WS ceased its PDM activities in Nevada, NDOW, would, by statute, carry out the management of wildlife with existing personnel or contract the work to other capable entities. Id. NWSP has been carrying out predator damage management activities in Nevada for more than eighty years, and has altered PDM activities to conform to changing societal values and to minimize impacts on citizens, wildlife, and the environment. EA at 2. Usually NWSP conducts PDM on an average of less than 6.8 million acres per month an amount comprising only about 10% of Nevada s land area. EA at 3. Although NWSP conducts PDM activities across 6.8 million acres, the actual area where equipment is set, or other control activities actually take - 6 -

7 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 7 of 26 place is much smaller. The majority of property under agreement for PDM is under grazing lease from the Bureau of Land Management ( BLM or privately owned. Id. Before NWSP personnel engage in PDM activities on a specified area of land, an Agreement for Control must be signed by NWSP and the land owner or manager, or a WS Annual Work Plan (AWP must be presented to the land management administrator or agency representative for their review. EA at 2. NWSP uses an Integrated Wildlife Damage Management ( IWDM approach, which encourages the employment of all legal methods to meet requests for aid in dealing with conflicts with predation. EA at 4. The methods available to NWSP personnel encompass several categories including: cultural practices (such as shed lambing and guard animal, habitat and behavior modification, and direct control (such as traps, shooting, and toxicants. EA at 4; NWSP personnel primarily use direct control techniques in a lethal manner. EA at 4. NWSP also provides technical assistance, including advice, education, and information, on how to alleviate damage from predation. EA at 4. III. LEGAL BACKGROUND A. Standard of Review 1. Federal Rule of Civil Procedure 12(b(1 Rule 12(b(1 of the Federal Rules of Civil Procedure provides for dismissal of an action for lack of subject matter jurisdiction. A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, (9th Cir Faced with a Rule 12(b(1 motion, a plaintiff bears the burden of proving the existence of the court s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir (per curiam. A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir In - 7 -

8 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 8 of 26 resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir When jurisdiction is challenged under Rule 12(b(1, the plaintiff bears the burden of producing evidence sufficient to establish the court s subject matter jurisdiction by a preponderance of the evidence. See Southway v. Cent. Bank of Nigeria, 328 F.3d 1267, 1274 (10th Cir Federal Rule of Civil Procedure 12(b(6 A motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b(6 may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep t, 901 F.2d 696, 699 (9th Cir. 1990; Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir In addition, a complaint that fails to provide the grounds for the requested relief beyond labels and conclusions will not survive a motion challenging the sufficiency of a complaint s statement of the claim for relief under Fed. R. Civ. P. 12(b(6. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007; see also Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir ( Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Where a plaintiff fails to assert a cognizable legal theory in support of a claim, the claim must be dismissed. Moreover, while the plaintiffs material factual allegations are assumed to be true, district courts may not assume the truth of legal conclusions merely because they are cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir A court may consider material properly submitted as part of the complaint on a motion to - 8 -

9 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 9 of 26 dismiss without converting the motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir B. Judicial Review Under the Administrative Procedure Act Where a statute, such as the National Environmental Policy Act ( NEPA, does not provide a cause of action, the APA, 5 U.S.C , provides for judicial review of challenges to a federal agency s compliance with these statutes. See Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1238 (9th Cir In order to state a cognizable claim under the APA, a plaintiff must properly allege either (1 that an agency unlawfully withheld or unreasonably delayed an action; or (2 that an agency s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(1; 706(2. Under Section 706(1 of the APA, a claim can only proceed where a plaintiff properly alleges that an agency failed to take a discrete agency action that it is required to take. Under Section 706(2, a plaintiff must identify a final agency action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir (quoting 5 U.S.C. 706(2(A. The standard of review of an agency action under the APA is highly deferential, and the agency s decision will only be overturned if the agency committed a clear error in judgment. Wetlands Action Network v. United States Army Corps of Eng rs, 222 F.3d 1105, 1115 (9th Cir (quotation marks and citation omitted; see Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir (en banc (agency decision is reversible only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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 - 9 -

10 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 10 of 26 expertise (quotation marks and citation omitted. An agency s decision is entitled to a presumption of regularity. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971. The APA does not require or even allow a court to overturn an agency action because it disagrees with the agency s decision or even with its conclusions about the scope, breadth, or environmental effects of the decision. Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553 (1978. The Court s task is to insure a fully-informed and well considered decision, not necessarily a decision [the court] would have reached had [it] been [a] member[] of the decisionmaking unit of the agency. Id. at 558. IV. ARGUMENT A. This Court Lacks Jurisdiction Over Plaintiff s Claims Because Plaintiff Have Not Alleged An Injury Sufficient to Invoke the Court s Jurisdiction As the party invoking federal jurisdiction, Plaintiff bears the burden of establishing constitutional standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992; Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009. To establish constitutional standing, a plaintiff must show (1 that he is under threat of suffering injury in fact that is concrete and particularized and actual and imminent, as opposed to conjectural or hypothetical; (2 the injury is fairly traceable to the defendant s conduct (a causal connection; and (3 it is likely not merely speculative that the injury will be redressed by a favorable decision. Summers, 555 U.S. at 493 (citation omitted; see also Defenders, 504 U.S. at 561. A deficiency on any one of the three prongs suffices to defeat standing. US Ecology, Inc. v. United States Dep t of Interior, 231 F.3d 20, 24 (D.C. Cir A plaintiff must have standing to sue at the time the action was commenced and throughout the litigation. Steele Co. v. Citizens for a Better Env t, 523 U.S. 83, 102 (1998; Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir

11 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 11 of 26 Plaintiff s First, Second, Third, and Fourth claims for relief assert alleged procedural injuries due to Wildlife Services alleged failure to prepare adequate NEPA documentation for the PDM activities it conducts. Compl. 163, 169, 180, 184. However, deprivation of a procedural right without some concrete interest that is affected by the deprivation a procedural right in vacuo is insufficient to create Article III standing. Summers, 555 U.S. at 496; see Turtle Island Restoration Network v. United States Dep t of State, 673 F.3d 914, 919 (9th Cir. 2012; Wilderness Soc y, Inc. v. Rey, 622 F.3d 1251, 1255 (9th Cir. 2010; see also Clatskanie Peoples Util. Dist. v. Bonneville Power Admin., 330 Fed. App x 637, 638 (9th Cir (stating that Summers superseded prior Ninth Circuit cases regarding standing to challenge ratemaking procedures. To be constitutionally cognizable, an injury in fact must be concrete and particularized and actual or imminent. Defenders, 504 U.S. at 560 (citations and internal quotation marks omitted. The alleged harm cannot be hypothetical, speculative, or describe other possible future injuries. Frias Holding Co. v. Greenberg Traurig, LLP, No. 2:11-CV GMN-LRL, 2011 WL , at *4 (D. Nev. Sept. 26, 2011; accord Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir Plaintiff s first allegation of injury vaguely states that Plaintiff s members use and enjoy the wildlife and other natural resources in Nevada and nationwide, including Wilderness Areas impacted by Wildlife Services activities. Compl. 15. But Plaintiff fails to identify any

12 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 12 of 26 specific acreage out of the approximately 22.5 million acres under cooperative agreements 1 for PDM management in Nevada alone (EA at 3; 70 where Plaintiff s use is affected by APHIS- WS PDM activities. This is especially important because NWSP does not conduct PDM in high use recreational areas except for the purposes of human health and safety protection. EA at 105. Moreover, much of the area worked is likely to not be noticed by recreationists due to the remote and hostile terrain of where these species occur.... Regarding livestock protection and natural resource protection, these areas are generally not used extensively by recreationists. Id. Absent specific allegations of injury involving Plaintiff s specific uses of the areas where APHIS-WS actually conducts PDM activities, Plaintiff fails to show any tangible, continuing connection to any particular location affected by the challenged decision, Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1148 (9th Cir (describing Defenders and Lujan, and thus, cannot establish an injury-in-fact. Plaintiff also alleges that Wildlife Services violations of law described herein cause harm to native carnivores, birds, and their ecosystems that Guardians members enjoy. Compl. 15. Plaintiff does not provide even the barest details of which members are impacted or where their members have been injured or how any alleged injury may have been the result of some specific action of APHIS predator damage management activities. The assertion is a mere conjecture, which does not suffice to establish standing. See Summers, 555 U.S. at 499 ( speculation does not suffice to establish standing. NWSP has been conducting predator damage management activities in Nevada for more than eighty years. EA at 2. NWSP s removal of individual predators is carefully planned and monitored to ensure the viability of 1 It is important to note that the cooperative agreements cover all of the land area that is covered by the agreement, even though predator damage management activities at any given time take place on only a small portion of the acres under the agreement

13 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 13 of 26 populations of native species. EA at 58. NWSP does not remove a significant number of any one species, and its PDM activities actually increase the viability of certain wildlife species, including game species and threatened and endangered species. EA at 102. Plaintiff s unspecified allegations of harm to carnivores, birds, and ecosystems without any connection to Plaintiff s activities or observations are insufficient to establish the irreducible constitutional minimum necessary to establish standing. Finally, Plaintiff states that its members are also concerned about the toxicants and traps used by Wildlife Services, placing them and their pets at risk. Compl. 16. Again, this vague assertion fails to specify any tangible, continuing connection to any particular location affected by the challenged decision. Ecological Rights, 230 F.3d at A key component of NWSP s mission is the use of standard operating procedures that minimize the potential exposure and harm to human health and safety, thus most NWSP PDM methods are used in areas where public access is limited and warning signs are prominently posted to alert the public whenever toxic devices or traps are deployed (EA at 106 and NWSP does not conduct PDM in high use recreational areas except for the purposes of human health and safety protection. EA at 105. Plaintiff also alleges a speculative risk of future harm to its members pets, but Table 14 in the 2011 EA contradicts such speculation by showing that the average annual number of nontarget species taken during PDM by NWSP was approximately twenty-nine individual animals and none of them are domestic pets. EA at 89. Between FY 06 and FY 09 one individual feral cat and one individual feral dog were taken unintentionally, but there was no record of domestic pets being taken. Plaintiff has not alleged, much less provided any evidence of, any actual harm to its members or any of their pets, or that they have even encountered toxicants or traps in

14 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 14 of 26 recreation areas that they visit, let alone that they or their pets have actually been injured in any concrete way. Rather, Plaintiff has merely claimed that its members are fearful that they or their pets may be at risk. Compl. at 16. In addition, the pesticides that are used by APHIS-WS are all registered with and regulated by the Environmental Protection Agency and the Nevada Department of Agriculture. EA at 34. APHIS-WS uses the chemicals according to the labeling procedures and requirements as regulated by EPA and NDOA. Id. Plaintiff s entirely speculative allegations of future harm fail to meet the requisite test for standing. Nw. Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir (the threat of future injury was deemed insufficient to establish injury-in-fact. In alleging a procedural violation of NEPA, the plaintiff is required to demonstrate a geographic nexus between the individual asserting the claim and the location suffering an environmental impact. W. Watersheds Project v. Bureau of Land Mgmt., 552 F. Supp. 2d 1113, (D. Nev By offering only generalized grievances unmoored from any specific location that personally affects Plaintiff s members, Plaintiff has failed to demonstrate injury-infact. Accordingly, Plaintiff s complaint must be dismissed for lack of jurisdiction. B. Plaintiff Cannot Establish Standing Because Its Alleged Injuries Will Not Be Redressed By Any Relief In This Lawsuit In addition to alleging a sufficient injury-in-fact, Plaintiff must also demonstrate that its injury in fact would be redressed by a favorable decision. Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978 (holding that a plaintiff must show a substantial likelihood that the alleged injury will be redressed by the relief it seeks. It is well-established both in NEPA cases and in other contexts that there is no redressability when, even if the plaintiff prevailed, a party not before the Court would still be free to engage in the offending action and when the plaintiff has not demonstrated any significant likelihood that the third party

15 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 15 of 26 would refrain from such action as a result of relief against the federal defendant. See, e.g., Levine v. Vilsack, 587 F.3d 986, (9th Cir (plaintiffs lack standing where redressability depends on third parties altering behavior; Klamath Water Users Ass'n v. FERC, 534 F.3d 735, (D.C. Cir (no redressability because petitioner s relief relies on actions by third parties not before the court and petitioner failed to show favorable decision would significantly increase likelihood of relief; Wolf Recovery Found. v. U.S. Forest Serv., No. 4:CV BLW, 2011 WL , at *1 (D. Idaho Jan. 20, 2011 (no redressability because even if court issued an injunction banning Wildlife Services from killing wolves, the state had authority to continue killing wolves; Americanus v. Wildlife Servs., No. CV HU, 2004 WL , at *5 (D. Or. Sept. 23, 2004 (holding that even if this court orders Wildlife Services to engage in further NEPA analysis, this court cannot redress the harm created by Wildlife Services killing depredating bears because the killing of such bears will continue by persons not affiliated with Wildlife Services ; Fund for Animals v. Babbitt, 2 F. Supp. 2d 570, 575 (D. Vt (no redressability even though court could remand to federal agency if it found a NEPA violation because state would continue moose hunt. The Ninth Circuit s decision in Goat Ranchers of Oregon v. Williams, 379 Fed. App'x 662, 663 (9th Cir. 2010, is particularly analogous to the instant situation. In Goat Ranchers, the plaintiffs had challenged Wildlife Services NEPA analysis for taking cougars under Oregon s own state-run, state-funded Cougar Management Plan. Goat Ranchers, 378 Fed. App x at 663. The court noted that Wildlife Services was acting at the behest of the state Oregon does not need federal approval to manage the cougars within its borders,... and is free to continue (as it has indicated it will the trapping and killing of cougars regardless of any relief available to [plaintiff] in this case. Id. The court concluded that the plaintiffs lacked standing because they

16 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 16 of 26 made no showing that whatever small probability they have of seeing a cougar in the wild will be reduced materially if the state does all rather than some of the cullings. Id. at 664 (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, (1976 ( [T]he case or controversy limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.. More recently, in Wolf Recovery Foundation, the plaintiffs had challenged the sufficiency of Wildlife Services NEPA analysis for taking wolves in Idaho WL , at *1. At the time the suit was filed, the Idaho Department of Fish & Game ( IDFG had authority to control wolf populations and had notified Wildlife Services that if it was not able to control wolves, the IDFG would take over itself. Id. The court concluded that the plaintiff lacked standing because an injunction banning Wildlife Services from killing wolves would not stop the IDFG from conducting the same activity. In other words, Plaintiff s alleged injury the killing of the wolves would not be redressed by the relief they [sought] in this lawsuit. Id. at*1. So too here. The Nevada Department of Wildlife is responsible by State statute (NRS for controlling wildlife causing damage to personal property or endangering personal safety. EA at C-163. Currently, the State of Nevada utilizes the services of APHIS-WS to manage offending wildlife, but it does not need APHIS-WS s approval nor APHIS-WS statutory authorities to do so. Like the State of Oregon in Goat Ranchers, and the State of Idaho in Wolf Recovery Found., Nevada has stated that even if WS did not conduct predator management activities, the Nevada Department of Wildlife would, by statu[t]e, carry out the management of wildlife with existing personnel or contract the work to other capable entities. EA at C-163. The Nevada Department of Wildlife has its own predator damage management

17 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 17 of 26 plan for coyotes, mountain lions, and ravens, and simply employs NWSP to implement NDOW s plan for predator management. 2 EA at 48. Thus, any relief Plaintiff might obtain in this case will not redress the underlying injury which forms the basis for their suit. Regardless of the outcome of this litigation the State of Nevada will still carry out the predator damage management activities that form the basis of Plaintiff s complaint. Accordingly, the Court should dismiss Plaintiff s Complaint in its entirety for lack of standing. C. Plaintiff Fails to State a Claim that APHIS Must Supplement the 1994/1997 PEIS. 1. Plaintiff s challenge to the 1994/1997 PEIS is barred by the statute of limitations. To the extent Plaintiff is attempting to directly challenge the 1994/1997 PEIS under NEPA, those claims are barred by the statute of limitations for actions against the United States. 28 U.S.C. 2401(a ( every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. ; Turtle Island Restoration Network v. U.S. Dep t of Commerce, 438 F.3d 937, (9th Cir (six-year statute of limitations applies to actions brought under the APA. The First and Second claims for relief must therefore be dismissed as untimely. 2. There is no mandatory non-discretionary duty that could properly sustain a claim for failure to supplement the 1994/1997 PEIS. Even if Plaintiff could satisfy the standing requirement, Plaintiff s First and Second claims for relief, seeking to compel APHIS-WS to supplement the 1994/1997 PEIS, must be 2 The same holds true for every category of land on which APHIS-WS operates. BLM and the Forest Service have their own plans for land management, while NDOW retains the management authority over the wildlife on federal lands. NDOW relies on NWSP to work with APHIS-WS to carry out those plans in accordance with their respective management plans. Similarly, where APHIS-WS conducts PDM activities on private and public grazing lands, it is the private landowners and grazing permittees that request APHIS-WS to conduct the management activities for their lands

18 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 18 of 26 dismissed for failure to state a claim on which relief can be granted. These claims fail as a matter of law. In order to properly state a claim under the APA, Plaintiff must show that there is a mandatory, non-discretionary duty on the part of Wildlife Services to supplement the PEIS for its PDM activities in Nevada. Under NEPA, an EIS is required as part of any proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(2(C. The Council on Environmental Quality s regulations only require supplementation of an EIS where [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R (c(1(ii. The Supreme Court has interpreted this regulation, in conjunction with Section 4332 of NEPA, to mandate supplementation only if there remains major Federal actio[n] to occur. SUWA, 524 U.S. at 73 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 361 (1989 (internal quotation marks omitted. The Court in SUWA further clarified that although the [a]pproval of a [land use plan] is a major Federal action requiring an EIS, that action is completed when the plan is approved. 542 U.S. at 73 (quoting 43 C.F.R (2003 (emphasis in original. In SUWA, the plaintiffs claimed that supplemental NEPA analysis of a resource management plan was required because alleged new circumstances arose after BLM approved the plan. 542 U.S. at The Court unanimously concluded that once BLM approved a land use plan, major federal action came to an end and there was no obligation to supplement the environmental analysis of the decision to approve the land use plan. Id. at 73. The Court reasoned that since BLM s approval of the land use plan was the action that required the initial

19 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 19 of 26 EIS, and since that plan had already been approved, there was no ongoing federal action that the agency could be required to review in a supplemental NEPA analysis. Id. Here, Plaintiff claims that new information and scientific studies require the agencies to supplement the 1997 PEIS. Even if Plaintiff s allegations regarding the significance of new information were well-founded and they are not their claim would still fail as a matter of law because no major federal action remains with respect to approval of the 1994/1997 PEIS. SUWA, 542 U.S. at In accordance with controlling precedent, no such action remains here because APHIS-WS completed the relevant nationwide program-level analysis in the PEIS in 1994, which was revised and reissued in The 1995 ROD explains that the 1994 PEIS provides a complete range of wildlife damage control strategies available as part of an overall integrated management approach. Application of appropriate methods will be determined following [the APHIS decision model] and completion of local analyses subject to the NEPA process. Animal Damage Control Program; Record of Decision Based on Final Environmental Impact Statement, 60 Fed. Reg. 13,399, 13,400 (Mar. 13, Just like the land use plan at issue in SUWA, the 1994/1997 PEIS and ROD simply guides and constrains actions, but does not... prescribe them. See SUWA, 542 U.S. at 71. Accordingly, Plaintiff points to no federal action remaining under the 1994/1997 PEIS and ROD that requires supplementation, and Plaintiff s claims regarding supplementation must be dismissed. 3 Even if Plaintiffs could properly state a claim regarding supplementation of the 1994/1997 PEIS, APHIS has reviewed and analyzed relevant new information, including some of the very studies referenced by Plaintiffs, in the 2011 Environmental Assessment for PDM activities in Nevada. The 2011 EA contains ample new information and analysis, including data on the threat of predation to livestock, crops, property, health and human safety, and other resources (EA at 5-21; data on the number of target predators taken per fiscal year (EA at 66-68; and data on the number of predators taken on land managed by BLM and USFS (EA at

20 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 20 of 26 The 1994/1997 PEIS and ROD provide the outlines of predator damage management at the nationwide program level, and provides high-level guidance to constrain decision-making regarding predator damage management activities at the local level, but does not mandate any particular course of action and requires local decision-makers to undertake local-level analyses of any particular predator damage management program. This is precisely the manner in which the land-use plan at issue in SUWA operated it constrained certain uses of managed lands within broad categories without mandating any particular project, and additional project-level analysis was required for any specific implementation of the uses outlined in the plan. Therefore, under SUWA, Plaintiff cannot state a viable claim that supplementation of the 1994/1997 PEIS is a discrete, legally-mandated action challengeable under the APA. See 542 U.S. at 71. Plaintiff s First and Second claims for relief must therefore be dismissed. D. Plaintiff s Complaint Raises an Improper Programmatic Challenge That Must be Dismissed. Plaintiff s First and Second claims for relief fail to identify any discrete agency actions taken by Wildlife Services that are challengeable under the APA. In the First Claim, Plaintiff alleges that Wildlife Services is violating NEPA by failing to continue to take a hard look at the environmental effects of its national PDM program. Compl The Second Claim alleges that Wildlife Services continues to violate NEPA by failing to supplement its 1994/1997 PEIS or prepare a new EIS for its national PDM program. Compl Whether characterized as agency action unlawfully withheld under Section 706 (1 of the APA, or agency action not in accordance with law under Section 706 (2 of the APA, Plaintiff is alleging an impermissibly broad programmatic challenge to Wildlife Service s national policy of predator damage management

21 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 21 of 26 To bring suit under the APA, Plaintiff must challenge agency action that is both discrete and final. SUWA, 542 U.S. at [W]hen... review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the agency action in question must be final agency action. Nat l Wildlife Fed n, 497 U.S. at 882 (quoting 5 U.S.C The Supreme Court has interpreted this language to mean that courts may not exercise jurisdiction over programmatic challenges which do not identify a specific final agency action with an immediate or threatened effect on the plaintiffs. That is, a court may intervene in the administration of the laws only when, and to the extent that, a specific final agency action has an actual or threatened immediate effect. Id. at 894. Because Plaintiff s complaint makes clear that their challenge is really a broad-based programmatic challenge to the Nevada predator damage management program as a whole, it should be dismissed for lack of jurisdiction. In Lujan v. National Wildlife Federation, the Supreme Court considered a suit challenging various actions taken by the Bureau of Land Management ( BLM pursuant to the Federal Land Policy and Management Act, such as its review and recommendations for withdrawal of lands from settlement or sale, and its classification of public lands for multiple use management. 497 U.S. at The Court rejected the plaintiffs suit, however, as an impermissible programmatic challenge because the plaintiffs failed to identify a concrete action applying the [program] to the claimant s situation in a fashion that harms or threatens to harm [them]. Id. at 891. The Court characterized this flaw as a failure to identify final agency action under Sections 702 and 704 of the APA. Id. at 894. Thus, plaintiffs whose claims are premised on violations of the APA cannot seek wholesale improvement of [a] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic

22 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 22 of 26 improvements are normally made. Id. at 891 (emphasis in original. Instead, they must direct [their] attack against some particular agency action that causes [them] harm. Id. When their case is viewed as a whole, it is apparent that Plaintiff is attempting to bring the same type of non-justiciable programmatic challenge as the plaintiffs in National Wildlife Federation and SUWA. Plaintiff fails to identify any discrete agency action it is challenging. Citing a report from 1964, Plaintiff attacks the internal culture of this killing agency. Compl. 3. In describing their mission, Plaintiff states that it regularly comments on Wildlife Services nationwide activities and educates the public on the agency s killing of wildlife. Id. 14. Plaintiff also avers that fundamental reforms of Wildlife Services have not occurred, nor has APHIS re-evaluated the impact and effectiveness of its federal wildlife killing program. Compl. 24. Plaintiff requests an order enjoining Wildlife Services from taking any further action to implement its PDM program anywhere in the United States. Compl. at p. 38, Request for Relief (emphasis added. Taken as a whole, Plaintiff s allegations demonstrate they are challenging the past, ongoing, and future predator damage management activities of APHIS on a national scale, and not an identifiable action or event. Nat l Wildlife Fed n, 497 U.S. at 899. These allegations constitute exactly the type of programmatic challenge prohibited by the Supreme Court in National Wildlife Federation. See 497 U.S. at 894 ( Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific final agency action has an actual or immediately threatened effect. ; see also Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir (Plaintiff s challenge of past, ongoing, and future timber sales approved by the Forest Service constituted an improper programmatic challenge. Plaintiff has selected a few allegedly improper agency actions to impermissibly demand a general judicial

23 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 23 of 26 review of [Wildlife Service s] day-to-day operations. See Nat l Wildlife Fed n, 497 U.S. at 899. Accordingly, their complaint must be dismissed. E. Plaintiff s Wilderness Act Claim Should Be Dismissed. Plaintiff s Fifth claim for relief, alleging violations of the Wilderness Act, must also be dismissed for failure to state a claim. Plaintiff essentially claims that any use of motor vehicles or motorized equipment including gunning and use of aircraft within congressionally designated Wilderness Areas is a per se violation of the Wilderness Act. Compl. at Plaintiff attempts to cast this cause of action as an APA claim, stating that Wildlife Services actions in failing to comply with the Wilderness Act as set forth above are arbitrary capricious... or without observance of procedures required by law.... Id. at Plaintiff, however, ignores the provisions of the statute that make clear that APHIS-WS activities in wilderness areas are permitted by the Wilderness Act. The Wilderness Act provides specific exceptions to its prohibitions on the use of mechanized equipment in Wilderness Areas. For example, notwithstanding the Wilderness Act, states retain the jurisdiction and responsibilities for managing the fish and wildlife. The statute expressly states that nothing in this chapter shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish in the National Forests. 16 U.S.C. 1133(d(7. In addition, the Wilderness Act expressly provides for the grazing of livestock, where established prior to September 3, Id. 1133(d(4(2. Predator Damage Management activities are a key part of a livestock grazing program. EA at 5-15, Plaintiffs allege that Wildlife Services uses motorized vehicles, motorized equipment, the landing of aircraft, and other forms of mechanical transport to conduct PDM activities in Wilderness Areas. Compl However, setting aside the fact that the enumerated activities would be legal under a facial reading of the Wilderness Act, such allegations are factually inaccurate. EA 34-35, 61-62; 109. Wildlife Services does not utilize prohibited motorized vehicles or equipment in Wilderness Areas, nor does it land aircraft in such areas. Id

24 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 24 of 26 The Ninth Circuit has recognized that under the Wilderness Act, activities that might otherwise violate the statute are permitted because private livestock grazing implicitly includes operations to support that grazing, such as lethal control of predators. Forest Guardians v. Animal and Plant Health Inspection Serv., 309 F.3d 1141, 1142 (9th Cir (per curiam (holding that the district court did not err in concluding that the Forest Service may authorize APHIS to perform lethal predator control of mountain lions in the Santa Teresa Wilderness in order to protect private livestock.. APHIS-WS operates in lands governed by the Wilderness Act at the request of NDOW, which retains management authority over wildlife on wilderness areas (16 U.S.C. 1133(d(7, and/or by grazing permittees where grazing has been historically authorized (16 U.S.C. 1133(d(4. Both the Bureau of Land Management (BLM and the United States Forest Service (FS recognize the importance of reducing wildlife damage on lands and resources under their jurisdiction, as integrated with their multiple use responsibilities and thus both agencies have entered into [Memoranda of Understanding ( MOU ] with WS nationally to facilitate a cooperative relationship. EA at 33. These Memoranda of Understanding between APHIS-WS and the Forest Service and between APHIS-WS and BLM ensure that APHIS-WS activities on those lands are carried out in accordance with the governing laws and regulations. EA at In summary, because the Wilderness Act recognizes specific exceptions to its prohibitions on motorized use, and APHIS-WS activities are carried out under MOUs with the BLM and Forest Service, Plaintiff cannot state a viable claim that APHIS-WS activities are per se prohibited by the Wilderness Act. Both the statute and the Ninth Circuit make clear that Plaintiff s Fifth Claim for Relief fails to state a viable claim against APHIS-WS for alleged violations of the Wilderness Act under the APA, and that claim must therefore be dismissed

25 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 25 of 26 V. CONCLUSION Plaintiff has no standing to bring any of the claims in its complaint. Plaintiff failed to allege a cognizable injury-in-fact for purposes standing, and, even if Plaintiff could establish a cognizable injury, there is no relief Plaintiff can obtain in this litigation that would redress its injury. Plaintiff s claims alleging defects in the 1994/1997 PEIS are barred by the statute of limitations as well. Even if those claims are not time-barred, Plaintiff has failed to state a valid claim under the APA for NEPA violations because Plaintiff has failed to identify a mandatory non-discretionary action that APHIS-WS is required to take, and has failed to identify a discrete agency action that it is challenging. Finally, Plaintiff has failed to state a viable claim under the Wilderness Act. Accordingly, Plaintiff s complaint must be dismissed in its entirety. Respectfully submitted this 17th day of July, 2012 IGNACIA S. MORENO Assistant Attorney General /s/ Brian M. Collins BRIAN M. COLLINS Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC Ph: Fax: Brian.m.collins@usdoj.gov ATTORNEY FOR FEDERAL DEFENDANTS

26 Case 2:12-cv MMD -PAL Document 12 Filed 07/17/12 Page 26 of 26 PROOF OF SERVICE I, Brian M. Collins, certify that the following individual was served with the DEFENDANT S MOTION TO DISMISS on this date by the below identified method of service: CM/ECF ELECTRONIC FILING: Ashley Wilmes 827 Maxwell Avenue Boulder, CO awilmes@wildearthguardians.org Julie Ann Cavanaugh-Bill Cavanaugh-Bill Law Offices, LLC 401 Railroad St. Suite 401 Elko, NV Fax: julie@cblawoffices.org DATED this 17th day of July /s/ Brian M. Collins BRIAN M. COLLINS Trial Attorney U.S. Department of Justice Environment & Natural Resources Division