IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

EASON LAND CO., LLC, an Oregon Limited

Liability Company, and JESSE D. WHITE

and PAMELA J. WHITE, husband and wife,

Plaintiffs,

v. 

SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE INTERIOR;

DIRECTOR OF THE BUREAU OF LAND

MANAGEMENT; OREGON STATE

DIRECTOR OF THE BUREAU OF LAND

MANAGEMENT; and DISTRICT

MANAGER FOR THE VALE DISTRICT OF

THE BUREAU OF LAND MANAGEMENT,

JORDAN RESOURCE AREA,

Defendants. 

 Case No. 2:14-CV-00951-SU

 FINDINGS AND 

RECOMMENDATION

SULLIVAN, Magistrate Judge:

Eason Land Co., LLC (“Eason LLC”) and Jesse and Pamela White (collectively “plaintiffs”),

landowners and/or assignees-of-interest with water and grazing rights in southeastern Oregon, filed

a complaint against the Secretary of the United States Department of the Interior, Director of the

Bureau of Land Management, Oregon State Director of the Bureau of Land Management, and

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District Manager for the Vale District of the Bureau of Land Management, Jordan Resource Area

(collectively “BLM”), asserting claims arising out of the BLM’s alleged failure to fully implement

a decision to remove or retrofit certain reservoirs. The BLM moves to dismiss plaintiffs’ complaint

pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). For the reasons set forth below,

the BLM’s motion should be granted.

BACKGROUND

This case involves a challenge to the implementation of a BLM decision that authorizes

retrofication and abandonment of 20 reservoirs in a livestock grazing allotment known as the Jackies

Butte Allotment. The Jackies Butte Allotment, located within the Jordan Field Office of the BLM’s

Vale District, consists of over 200,000 acres of publicly-administered land. Compl. ¶¶ 4-6, 8. Eason

LLC is an Oregon company that owns private land, water rights, and base property in and around

the Jackies Butte Allotment. Id. at ¶¶ 3, 8, 10-11, 13-26; 43 C.F.R. § 4110.2-1. The Whites lease

private property and water rights from Eason LLC; they also hold an associated BLM grazing permit

for the Jackies Butte Allotment. Compl. ¶ 3; Compl. Exs. 1-4. 

Because the Jackies Butte Allotment has relatively few water sources, thereby limiting the

amount of grazing that can occur, the BLM constructed and operated various reservoirs beginning

in the 1960s. Compl. ¶ 27. According to plaintiffs, these actions impaired their senior water rights.

Id. at ¶ 28. In 1973, the BLM and plaintiffs’ predecessors-in-interest, Ralph and Beverly Eason,

entered into a written contract (“Contract”) pursuant to which the Easons agreed “to allow the BLM

to construct and maintain as many water structures and developments as may be necessary for proper

management of the Jackies Butte Unit on which they control the water right.” Compl. Ex. 5, at 109;

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see also BLM’s Mem. in Supp. of Mot. Dismiss Ex. A; Chad Decl. Ex. C, at 3.1

 In exchange, the

BLM allocated the Easons an additional 1,400 Animal Unit Months (“AUMs”)2

 of forage beyond

that already authorized in relation to their base property qualifications and corresponding BLM

grazing permit. Compl. ¶ 28; Compl. Ex. 5, at 109. The Contract was binding on all heirs and future

assignees, precluding the Easons or their successors-in-interest, including Eason LLC and the

Whites, from “interpos[ing] [any] further objection[s] to BLM reservoir construction or water use.”

Compl. Ex. 5, at 109; BLM’s Mem. in Supp. of Mot. Dismiss Ex. A; Chad Decl. Ex. C, at 3. 

In early 2006, the Whites made a call for water. Compl. ¶ 30. Although it was later

rescinded, the Oregon Water Resources Department (“OWRD”) required the BLM to develop a plan

to meet this and any future calls for water. Id.; Compl. Ex. 5, at 109; Chad Decl. Ex. C, at 3. In May

2008, the BLM issued an environmental assessment (“EA”), which set forth its plan “to comply with

Oregon State water law by satisfying senior water right calls in a way that fits within the BLM’s

budget and time limitations.” Compl. ¶ 32; Compl. Ex. 5, at 109; Chad Decl. Ex. C, at 3. In relevant

part, the BLM determined that, because the subject reservoirs as originally designed did not have

1 Because plaintiffs did not number the exhibits to their complaint, the Court refers to the page

numbers assigned in the docket. Further, although plaintiffs did not attach the Contract or final

BLM decision to their complaint, they incorporate these documents by reference and their

authenticity is not disputed. Accordingly, the Court considers these documents, which are

attached as Exhibit A to the BLM’s opening brief and Exhibit C to Carolyn Chad’s declaration,

respectively, in evaluating whether dismissal is proper under Fed. R. Civ. P. 12(b)(6). Fed. R.

Evid. 201(b); Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).

2 An AUM corresponds to “the amount of forage necessary for the sustenance of one cow or its

equivalent for a period of 1 month.” 43 C.F.R. § 4100.0-5. The parties dispute whether the

AUMs furnished under the Contract qualify as “trade-of-use AUMs” or “exchange-of-use

AUMs.” Compare BLM’s Reply to Mot. Dismiss 5 n.2, with Pls.’ Surreply to Mot. Dismiss 3-5.

Because resolution of this issue is not determinative, the Court will simply refer to forage

provided under the Contract as “additional,” “supplemental,” or “extra.” 

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any means of evacuating water, there was no economically feasible way to empty the reservoirs

without eliminating most of them. Compl. Ex. 5, at 109-10; Chad Decl. Ex. C, at 3. Thus, the EA’s

proposed alternative was to retrofit four to eight of these reservoirs with a pipe and valve, and

abandon and reclaim the remaining sites. Compl. Ex. 5, at 109-11; Chad Decl. Ex. C, at 3; Compl.

¶ 32. In exchange, the BLM would cancel plaintiffs’ extra 1,400 AUMs due to “the lack of an

assurance that the Bureau would be consistently able to hold water in any reservoirs . . . Public

benefits of maintaining the [Contract] are no longer present in the absence of dependable water in

reservoirs to support livestock grazing, wild horses, and other public land uses.” Compl. Ex. 5, at

110, 118; Chad Decl. Ex. C, at 4, 12. Because the EA concluded that the proposed action would not

result in a significant impact on the human environment, it was accompanied by a Finding of No

Significant Impact (“FONSI”). Compl. Ex. 5, at 124-26; Chad Decl. Ex. C, at 18-20. 

 Thereafter, plaintiffs administratively commented on the EA; the BLM responded to

plaintiffs’ comments, added an additional reservoir, and affirmed the EA under 43 C.F.R. § 4160.1

in July 2008. Compl. ¶¶ 34-36; Compl. Ex. 5, at 129-37. Ultimately, the BLM selected the EA’s

proposed alternative of retrofitting a limited number of reservoirs and abandoning the remainder

“for implementation as the most practical means of complying with Oregon State Water Law and

satisfying the Whites’ call for water.” Compl. Ex. 5, at 130; see generally Chad Decl. Ex. C. The

decision established a means for cancelling the Whites’ extra 1,400 AUMs in proportion to

removing or retrofitting the 20 reservoirs. Compl. Ex. 5, at 130. Although plaintiffs were explicitly

informed of their right to protest that decision in accordance with 43 C.F.R. § 4160.2 or file an

appeal with the Department of the Interior’s Office of Hearing and Appeals (“OHA”), they declined

to do so. Compl. ¶ 37.

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Between late 2008 and early 2011, the BLM performed work on 19 of the 20 reservoirs and

reduced plaintiffs’ 1,400 AUMs accordingly. Id. at ¶¶ 39, 42; Compl. Ex. 5, at 4. In March 2011,

the BLM cancelled plaintiffs’ remaining additional AUMs. Compl. ¶¶ 40, 42. In September 2011,

the BLM sent a letter to the OWRD describing the work it had completed in relation to the subject

reservoirs, acknowledging that “the Whites have made a call for water for the 2012 water year[,]”

and requesting “direction from the OWRD on what actions will be required of the BLM to satisfy

[its] obligation to the Whites’ water call.” Chad Decl. Ex. B, at 2.3

 In February 2012, the OWRD

responded to the BLM’s correspondence, “thank[ing] [the BLM for its] cooperation and for the

completion of the plan,” and confirming that the BLM’s work would “allow timely releases to

satisfy downstream senior water right calls.” Chad Decl. Ex. A, at 1-3. 

Plaintiffs do not allege that their 2012 call for water was not fulfilled and there is no

indication that they made a call for water in 2013. See generally Compl. Plaintiffs nonetheless

believed that the BLM had not completed all work described within the EA. Id. at ¶ 40. As such, in

October 2013, the Whites hired a paid consultant to prepare a report “on the status of the

implementation of the Final Decision.” Id. at ¶ 41. This report concluded that the BLM had

“adequately” executed the EA in relation to five reservoirs; however, the EA had not been

implemented satisfactorily or to completion on an additional 14 reservoirs. Compl. Ex. 5, at 1. In

January 2014, the Whites sent a letter to the BLM’s Jordan Field Office4

 “making call on water to

3 With the exception of Exhibit C to Ms. Chad’s declaration, the facts and evidence included in

the parties’ supplemental briefs are relevant only to the extent they provide additional context

for the parties’ dispute or relate to subject matter jurisdiction. Kingman Reef Atoll Invs., LLC v.

United States, 541 F.3d 1189, 1195 (9th Cir. 2008).

4 Plaintiffs’ previous calls for water were lodged directly with the OWRD, the party “responsibl[e]

[for] ensur[ing] the senior water rights are satisfied.” Chad Decl. Ex. A, at 1, Chad Decl. Ex. C,

at 3, Compl. Ex. 5, at 109. In it unclear from the record before the Court whether plaintiffs’ 2014

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fulfill all of their water rights for the 2014 irrigation season” and requesting a response to their

consultant’s report, which they included as an attachment. Compl. Ex. 6. In February 2014, the BLM

replied to the Whites’ letter as follows: “[w]e recognize that there may be some inadequacies

regarding dead storage of water[,] [however, we] are working closely with OWRD to address these

issues and in accordance with direction from OWRD we will take the necessary actions to release

all possible water when a call in made.” Compl. Ex. 7. In March 2014, the Whites sought further

information regarding what “actions [the] BLM has taken to this date to release the water necessary

to fulfill [their January 2014] call.” Compl. Ex. 8. 

On June 13, 2014, after “not hear[ing] anything further from the BLM,” plaintiffs filed a

complaint in this Court, alleging claims for: (1) mandamus, 28 U.S.C. § 1361; (2) declaratory

judgment, 28 U.S.C. §§ 2201-02; (3) unreasonable delay, 5 U.S.C. § 706(1); and (4) arbitrary and

capricious final agency action, 5 U.S.C. § 706(2). Compl. ¶¶ 46, 48–71. On September 24, 2014, the

BLM filed the present motion to dismiss. On December 19, 2014, the parties lodged supplemental

briefs in accordance with the Court’s request. 

STANDARD OF REVIEW

Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed. R. Civ.

P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be either facial or factual.” Safe Air for

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). “In a facial attack, the

challenger assets that the allegations contained in a complaint are insufficient on their face to invoke

federal jurisdiction.” Id. By contrast, a factual attack “disputes the truth of the allegations that, by

themselves, would otherwise invoke federal jurisdiction.” Id. In evaluating a factual attack, the court

call was communicated to the OWRD. In any event, the complaint does not allege that plaintiffs

made a call for water to the OWRD in 2014.

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may hear evidence regarding subject matter jurisdiction and resolve factual disputes where

necessary: “no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of

disputed material facts will not preclude the [court] from evaluating for itself the merits of

jurisdictional claims.” Kingman, 541 F.3d at 1195 (citation and internal quotations omitted). The

party who seeks to invoke the subject matter jurisdiction of the court has the burden of establishing

that such jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Similarly, where the plaintiff “fails to state a claim upon which relief can be granted,” the

court must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint

must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a Fed. R. Civ. P. 12(b)(6) motion, the

complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen

v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to

nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not

entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a

plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to

support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132

S.Ct. 2101 (2012).

DISCUSSION

The central contention in plaintiffs’ complaint is that the BLM “impaired” its senior water

rights by first constructing the subject reservoirs in the 1960s and, later, by failing to adequately and

completely implement work described in the EA. As relief, plaintiffs request that the Court order

the BLM to immediately remove or retrofit all twenty reservoirs at issue, or reinstate the 1,400

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AUMs afforded under the Contract.5

The BLM argues that dismissal is warranted for three reasons. First, the BLM asserts that

this Court lacks subject matter jurisdiction over plaintiffs’ mandamus and declaratory judgment

claims because the United States did not consent to suit. Second, the BLM contends that plaintiffs

failed to exhaust administrative remedies in regard to their arbitrary and capricious claim under 5

U.S.C. § 706(2) of the Administrative Procedures Act (“APA”). Finally, according to the BLM,

plaintiffs’ claims fail at the pleadings level. 

I. Subject Matter Jurisdiction

Three threshold jurisdictional issues must be resolved in relation to plaintiffs’ complaint: the

existence of a justiciable controversy, exhaustion of administrative remedies, and sovereign

immunity.

A. Justiciable Controversy

Federal courts have an independent duty to address issues of subject matter jurisdiction under

Article III of the United States Constitution before reaching the merits of a case. See United

Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966-67 (9th Cir. 2004) (the “district

court ha[s] a duty to establish subject-matter jurisdiction . . . sua sponte, whether the parties raised

the issue or not”). Article III requires that federal courts preside over actual cases or controversies.

Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983) (per curiam). This requirement is unmet

where the plaintiff lacks standing or asserts unripe claims.

Standing refers to the “personal interest that must exist at the commencement of the

5 The complaint acknowledges that the BLM construed the Contract as breached by the Whites’

2006 call for water. Compl. ¶ 30. Although plaintiffs “disagreed with the BLM’s view,” they do

not allege any contract-related claims. Id.

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litigation” and continue throughout its existence. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

Inc., 528 U.S. 167, 189 (2000). The “personal interest” that constitutes standing consists of three

elements: (1) an injury-in-fact - i.e. an invasion of a legally protected interest that is concrete and

particularized, as well as actual or imminent; (2) a causal connection between the injury-in-fact and

the defendant’s challenged behavior; and (3) likelihood that the injury-in-fact will be redressed by

a favorable ruling. Id. at 181-82. The ripeness doctrine prevents the court from overseeing matters

that are premature for review because the injury is speculative and may never occur. See W. Oil &

Gas Ass’n v. Sonoma Cnty., 905 F.2d 1287, 1290 (9th Cir. 1990), cert. denied, 498 U.S. 1067 (1991)

(“[t]he ripeness inquiry asks whether there yet is any need for the court to act”). In deciding whether

an issue is ripe, the court evaluates both the fitness of the issue for judicial review and the hardship

on the parties if the court withholds consideration. Standard Ala. Prod. Co. v. Schaible, 874 F.2d

624, 627 (9th Cir. 1989), cert. denied, 495 U.S. 904 (1990) (citation omitted). Accordingly, “[t]he

constitutional component of ripeness overlaps with the ‘injury in fact’ analysis for Article III

standing.” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010). 

Here, plaintiffs failed to establish the existence of a justiciable controversy. Plaintiffs assert

broadly that the BLM’s failure to remove and retrofit the 20 reservoirs in question impairs their

senior water rights. See, e.g., Compl. ¶¶ 28, 49, 56, 64. However, plaintiffs do not directly argue or

allege a denial of the water they want and/or need to satisfy those rights. In addition, the BLM

submitted evidence that it “is capable of meeting Plaintiffs’ call for water.” BLM’s Supplemental

Br. 5; Chad Decl. ¶¶ 5-9; Chad Decl. Exs. A-B. The BLM also furnished evidence demonstrating

that it “substantially complied” with the EA. BLM’s Supplemental Br. 2-5; see generally Chad Decl.

Indeed, the OWRD reviewed the BLM’s work and determined, in February 2012, that “no further

action on [the BLM’s] part to modify the reservoirs is necessary at this time” because the BLM’s

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actions pursuant to the EA “allow [for the] timely release [of water] to satisfy downstream senior

water rights.” BLM’s Supplement Br. 2; Chad Decl. Exs. A-B. In light of this evidence, the Court

cannot conclude that plaintiffs have suffered an injury-in-fact that is concrete, particularized, actual,

imminent, and likely to be redressed by a favorable ruling. 

Additionally, the 2014 irrigation season has expired and plaintiffs have not made another call

for water in relation to 2015. Chad Decl. ¶ 10. The alleged harm is therefore contingent upon events

that are not certain to occur. As such, there is no current need for this Court to act and plaintiffs will

not suffer any hardship as a result. See, e.g., Oliver v. Delta Fin. Liquidating Trust, 2012 WL

3704954, *4 (D.Or. Aug. 27, 2012) (declaratory judgment claim relating to a residential security

instrument was not yet ripe in the absence of any action to enforce that security instrument). Any

decision that this Court could reach based on the speculative events alleged in the complaint would

be advisory in nature. These are precisely the circumstances that federal courts are prevented from

adjudicating under Article III. The BLM’s motion should be granted.

B. Sovereign Immunity

“It is elementary that the United States, as sovereign, is immune from suit save as it

[expressly and affirmatively] consents to be sued.” Tobar v. United States, 639 F.3d 1191, 1195 (9th

Cir. 2011) (citation and internal quotations omitted). Absent a waiver of sovereign immunity, a court

lacks subject matter jurisdiction over a suit against the United States or one of its agencies. Dunn

& Black P.S. v. United States, 492 F.3d 1084, 1087 (9th Cir. 2007). The party asserting a claim

against the United States bears “the burden of establishing [the government’s] unequivocally

expressed waiver.” Id. at 1088. Although they confer jurisdiction, neither the Declaratory Judgment

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Act nor the mandamus statute provide a waiver of sovereign immunity.6

 28 U.S.C. §§ 1361, 2201-

02; see also Burns Ranches, Inc. v. U.S. Dep’t of the Interior, 851 F.Supp.2d 1267, 1170-72 (D.Or.

2011) (“the Declaratory Judgment Act [is] not a consent of the United States to be sued, and merely

grants an additional remedy in cases where jurisdiction already exists in the court”) (citation and

internal quotations omitted); Hou Hawaiians v. Cayetano, 183 F.3d 945, 947 (9th Cir. 1999)

(“sovereign immunity . . . has not been waived by the mandamus statute”) (citation omitted); United

States v. Park Place Assocs., Ltd., 563 F.3d 907, 923 (9th Cir. 2009) (explaining that sovereign

immunity and subject matter jurisdiction, while related, are “distinct” concepts).

Plaintiffs’ complaint is silent regarding the issue of sovereign immunity waiver and the

BLM’s motion makes clear that it did not consent to suit. See BLM’s Mem. in Supp. of Mot.

Dismiss 10-11, 13-14. In response, plaintiffs assert, without analysis or citation to relevant

precedent, that their mandamus and declaratory judgment claims fall “within the exceptions to

sovereign immunity recognized by the Ninth Circuit” because the BLM’s actions “exceed its

statutory powers” and “amoun[t] to a taking under the Fifth Amend to the U.S. Constitution.” Pls.’

Resp. to Mot. Dismiss 8. 

The Court finds that plaintiffs’ blanket assertion, without more, is insufficient. Regardless,

no such exception exists here. There are two recognized exceptions to the sovereign immunity

doctrine: “‘(1) action by officers beyond their statutory powers and (2) even though within the scope

of their authority, the powers themselves or the manner in which they are exercised are

6 Conversely, the APA provides a waiver of sovereign immunity where the challenged action falls

within 5 U.S.C. § 706. Equal Emp’t Opportunity Comm’n v. Peabody W. Coal Co., 610 F.3d

1070, 1085-86 (9th Cir. 2010), cert. denied, 132 S.Ct. 91 (2011).

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constitutionally void.’”7 Smith v. Grimm, 534 F.2d 1346, 1351 n.6 (9th Cir. 1976) (quoting Dugan

v. Rank, 372 U.S. 609, 621-22 (1963)). Neither plaintiffs’ complaint nor their briefs make reference

to ultra vires acts by individual officers. See generally Compl.; Pls.’ Resp. to Mot. Dismiss; Pls.’

Surreply to Mot. Dismiss. In fact, the allegation that plaintiffs rely on to support the existence of an

exception merely states that the BLM itself has violated various sources of law. Pls.’ Resp. to Mot.

Dismiss 8 (citing Compl. ¶ 49). Because plaintiffs seek to compel the BLM to act, their suit is one

against the United States and not individual officers. See Dugan, 372 U.S. at 620 (a suit is

considered one against the sovereign, even if nominally aimed at an official, “if the judgment sought

would expend itself on the public treasury or domain, or interfere with the public administration, or

if the effect of the judgment would be to restrain the Government from acting, or to compel it to

act”) (citations omitted); see also Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682,

691 n.11 (1949) (a suit alleging ultra vires acts may still fail “as one against the sovereign, even if

it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers,

if the relief requested cannot be granted by merely ordering the cessation of the conduct complained

of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign

property”).

Furthermore, although plaintiffs refer to the Fifth Amendment in their complaint, they did

not include a takings claim. See Compl. ¶¶ 49, 70-71. Even if they had, the Fifth Amendment does

not require that the government provide immediate compensation at the time of the taking; rather,

it guarantees the existence of an adequate process for obtaining compensation. Bay View, Inc. on

7 These exceptions are narrowly construed. Plaintiffs have not cited to, and the Court is not aware

of, any authority, from either within or without the Ninth Circuit, that has applied one of these

exceptions to overcome the waiver requirement under similar or analogous circumstances.

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behalf of AK Native Village Corps. v. Ahtna, Inc., 105 F.3d 1281, 1284-85 (9th Cir. 1997) (citations

omitted). Congress has provided such a process through the Tucker Act, 28 U.S.C. § 1491. Id. In

sum, even if the BLM’s actions had resulted in a taking, it does not necessarily follow that the

government acted outside its authority. Because no exception to the waiver of sovereign immunity

applies in the case at bar, this Court lacks jurisdiction over plaintiffs’ first and second claims.

C. Exhaustion of Administrative Remedies

The APA “requires that plaintiffs exhaust available administrative remedies before bringing

their grievances to federal court.” Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 965 (9th

Cir. 2002). Exhaustion is a jurisdictional requirement. Or. Natural Desert Ass’n v. Bureau of Land

Mgmt. (“ONDA”), 2014 WL 4832218, *1-2, 10-14 (D.Or. Sept. 29, 2014). The purpose of the

exhaustion doctrines is to allow administrative agencies to utilize their expertise, correct any

mistakes, and avoid unnecessary judicial intervention. Buckingham v. Sec’y of the U..S. Dep’t of

Agric., 603 F.3d 1073, 1080 (9th Cir. 2010). 

In their fourth claim, plaintiffs invoke the APA and attack the EA itself as being contrary to

law. See Compl. ¶¶ 69-70 (alleging that the EA “was incapable of conforming to Oregon State Water

Law and satisfying the Plaintiffs’ call for water”); see also Natural Res. Def. Council v. Nat’l

Marine Fisheries Serv., 421 F .3d 872, 877 (9th Cir. 2005) (under 5 U.S.C. § 706(2) of the APA,

the court evaluates whether the challenged agency action was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law”) (citation and internal quotations omitted).

Nevertheless, plaintiffs’ responsive brief is inconsistent with the complaint’s allegations; they state

repeatedly that the EA “promised to provide exactly the solution they were hoping for.” Pls.’ Resp.

to Mot. Dismiss 5; see also id. at 11 (“why would [they] appeal a decision that purported to give

them exactly what they wanted - i.e. the complete removal or retrofitting of all the reservoirs in

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question in exchange for cancelling all of their exchange-of-use AUMs?”); Compl. ¶ 71 (plaintiffs

requesting, as relief for their fourth claim, that the Court “direct the BLM to immediately remove

all of the twenty (20) water projects implicated in the Final Decision”). The Court accepts plaintiffs’

subsequent insistence that the EA, as opposed to its implementation, was proper and in accordance

with the law - i.e. that it was not arbitrary and capricious within the meaning of 5 U.S.C. § 706(2).8

In any event, plaintiffs failed to exhaust their administrative remedies. The BLM issued the

decision that serves as the basis of this lawsuit “under the BLM’s grazing regulations at 43 C.F.R.

§ 4100, et seq.” BLM’s Mem. in Supp. of Mot. Dismiss 17; see also ONDA, 2014 WL 4832218 at

*10-14 (summarizing the exhaustion and finality requirements as they relate to decisions issued

under the BLM’s grazing regulations). It is undisputed that plaintiffs elected not to challenge the

BLM’s decision by lodging a protest or filing an appeal or stay petition with the OHA, thereby

rendering the EA and the corresponding FONSI final. Compl. ¶ 37; Pls.’ Resp. to Mot. Dismiss 5,

11; see also 43 C.F.R. §§ 4160.2, 4160.3(a), 4.470(a). If, as alleged in the complaint, plaintiffs

perceived the EA as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law, they were required to contest that decision before it became final in order to allow the agency

to correct any mistakes and address all issues in the first instance. See White Mountain Apache Tribe

v. Hodel, 840 F.2d 675, 677-78 (9th Cir. 1988) (dismissing an 5 U.S.C. § 706(2) claim for failure

to exhaust where the plaintiff “has admittedly not pursued any appeals of the management decisions

which it seeks to challenge in district court”). 

8 The Court acknowledges that ordinarily “‘new’ allegations contained in the [plaintiffs’]

opposition motion . . . are irrelevant for Rule 12(b)(6) purposes.” Schneider v. Cal. Dep’t of

Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). Nevertheless, where, as here, the plaintiffs admit

in a responsive brief that certain requisite elements of their claim are not present, dismissal is

warranted. See, e.g., Thomas v. OneWest Bank, FSB, 2011 WL 867880, *3 (D.Or. Mar. 10,

2011). 

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To the extent that plaintiffs assert that they were not required to exhaust their administrative

remedies pursuant to Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002), their

argument is unpersuasive. In Hahn, environmental groups challenged the agency’s issuance of

grazing permits to cattle ranchers because overgrazing was causing environmental harm. Hahn, 307

F.3d at 820. The defendants contended that the district court erred by ordering interim equitable

relief because “[i]t is undisputed that the Environmental Groups did not exhaust their administrative

appeals” before filing suit. Id. at 823-25. Hahn summarized the issue as follows:

[t]he question before us is whether the BLM’s administrative appeal regulations

provide procedures that effectively render inoperative the challenged decision

pending appeal. If the regulations do not allow for the decision to be rendered

inoperative pending administrative appeal, then exhaustion of administrative appeals

is not required and the matter was properly before the district court.

Id. at 825; see also 43 C.F.R. § 4.479.

The Hahn court noted that, under 43 C.F.R. § 4.21, an “aggrieved party must file not only

an appeal but must also file a petition for a stay of the decision pending appeal as well,” yet

“additional BLM regulations” allowed continued grazing under the challenged grazing permit “even

when a stay is granted.” Hahn, 307 F.3d at 825-27. The stay at issue in Hahn did “not render the

permit decision inoperative but actually implement[ed] an unreviewed decision to renew grazing

authorizations and at the same time allow[ed] grazing practices that are known to harm the

environment.” Id. at 827. The Hahn court held “that exhaustion [was] not required” because “under

the facts of this case the BLM’s regulations render[ed] the decision ‘inoperative’ in name only,

while in fact implementing an unreviewed decision.” Id. at 827-28.

Thus, as this Court recently explained, “whether exhaustion is required [under Hahn] hinges

on whether an OHA stay of the agency decision is a true stay - i.e. whether it actually stops the harm

alleged to flow from the proposed agency action.” ONDA, 2014 WL 4832218 at *12 (citations

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omitted). In this case, plaintiffs allege that they are harmed by an agency decision approving the

retrofication and removal of 20 reservoirs. Compl. ¶¶ 66-71. Unlike Hahn, and exactly as in ONDA,

plaintiffs here do not challenge the underlying resource management plan, which authorizes grazing

generally, or the issuance of a grazing permit or any specific harms associated therewith, such as

overgrazing. As a result, the regulation under which continued grazing was allowed in Hahn, even

with an OHA stay in place, is inapplicable. Hahn, 307 F.3d at 825-28; 43 C.F.R. § 4160.4(b); Chad

Decl. Ex. C; see also ONDA, 2014 WL 4832218 at *1-2, 11-12 (dismissing an APA claim under

analogous circumstances). Because an OHA stay would have rendered the proposed action

inoperative, as it actually would have stopped the BLM from taking any action in relation to the

subject reservoirs, plaintiffs were required to exhaust their administrative remedies prior to seeking

recourse in this Court pursuant to 5 U.S.C. § 706(2). Therefore, this Court lacks subject matter

jurisdiction and plaintiffs’ claims should be dismissed.

II. Failure to State a Claim

Even if subject matter jurisdiction was not lacking, plaintiffs’ pleadings are deficient in two

respects. First, both the APA and mandamus statute require the existence of a separate legal

authority whose violation forms the basis for the complaint. See Or. Natural Res. Council v.

Thomas, 92 F.3d 792, 798-99 (9th Cir. 1996) (a stand-alone APA claim cannot be sustained under

5 U.S.C. § 706(2)); Norton v. S. Utah Wilderness Ass’n, 542 U.S. 55, 64 (2004) (an unreasonable

delay claim “can proceed [under 5 U.S.C. § 706(1)] only where a plaintiff asserts that an agency

failed to take a discrete agency action that it is required to take”); Johnson v. Reilly, 349 F.3d 1149,

1154 (9th Cir. 2003) (mandamus is an extraordinary remedy that requires a showing the defendant

had a “duty [that] is ministerial and so plainly prescribed as to be free from doubt”) (citations and

internal quotations omitted). This is because, rather than imposing substantive requirements, the

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APA and mandamus statute provide frameworks for review. El Rescate Legal Servs. v. Exec. Office

of Immigration Review, 959 F.2d 742, 753 (9th Cir. 1991). Absent a statute with substantive

standards, judicial review is precluded because there is no “law to apply [and] ‘no meaningful

standard against which to judge the agency’s exercise of discretion.’” Thomas, 92 F.3d at 798

(quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). 

According to plaintiffs, the complaint identifies five legal authorities that compel the BLM

to remove or retrofit the subject reservoirs or reinstate their 1,400 AUMs: (1) “Or. Rev. Stat. §

536.005, et seq.”; (2) “the Fifth Amendment to the U.S. Constitution”; (3) BLM regulations, 43

C.F.R. § 4120.3-1(a) and 43 C.F.R. § 4130.6-1; (4) the EA; and (5) the Contract. Pls.’ Resp. to Mot.

Dismiss 9-13, 17 (citing Compl. ¶¶ 28, 35, 49-50, 53). Plaintiffs also contend that the “BLM,

exercising the authority granted to it under the Taylor Grazing Act, 43 U.S.C. § 315 et seq., Federal

Land Policy and Management Act, 43 U.S.C. § 1701 et seq., and the National Environmental Policy

Act, 42 U.S.C. § 4321 et seq., incorporated these statutory bases into its decision making process.”

Id. at 17. 

Contrary to plaintiffs’ assertion, the Court finds that none of these sources require the BLM

to eliminate or retrofit reservoirs, or reinstate contractually-authorized supplemental AUMs. Chapter

536 of the Oregon Revised Statutes merely establishes an administrative scheme for the Oregon

water authority. See Or. Rev. Stat. § 536.005, et seq.; see also Teel Irrigation Dist. v. Water

Resources Dep’t of Or., 323 Or. 663, 919 P.2d 1172 (1996) (citing to “ORS chapter 536

(establishing Water Resources Administration)” in support of the proposition that “[t]he Water

Resources Commission and the Water Resources Department set policy and regulate the

appropriation of ground and surface water in this state”). Likewise, to the extent they are even

relevant, the federal statutes that plaintiffs rely on neither form the basis of their complaint nor

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dictate a discrete agency act that the BLM was required to take in this context. See generally

Compl.; see also Sierra Club v. Bosworth, 510 F.3d 1016, 1018 (9th Cir. 2007) (the National

Environmental Policy Act is “a procedural statute that does not mandate particular results”);

Gardner v. Bureau of Land Mgmt., 638 F.3d 1217, 1222 (9th Cir. 2011) (the Federal Land Policy

and Management Act is “a broad statutory framework setting forth the goals and management

requirements” for public lands); W. Watersheds Project v. Abbey, 719 F.3d 1035, 1044 (9th Cir.

2013) (the Taylor Grazing Act regulates grazing on public lands to improve rangeland conditions).

That plaintiffs neglected to cite a single specific provision within these regulatory schemes lends

further support to the inadequacies of their mandamus and APA claims. See, e.g., Compl. ¶¶ 49, 69

(referring only to “O.R.S. § 536, et seq.” or “Oregon State Water Law”).

In addition, the BLM regulations that plaintiffs cite are discretionary and, as discussed above,

the Fifth Amendment’s takings clause merely provides a framework for obtaining compensation.

See 43 C.F.R. § 4120.3-1(a)9

 (“[r]ange improvements shall be installed, used, maintained, and/or

modified on the public lands, or removed from these lands, in a manner consistent with multiple-use

management”); 43 C.F.R. § 4130.6-1 (outlining the circumstances under which the BLM “may”

issue an “exchange-of-use grazing agreement”). Finally, neither the EA nor the Contract constitute

“a specific legislative command.” Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923,

932 (9th Cir. 2010).

In other words, “‘[c]ease impairing Plaintiffs’ water rights’ is not a ‘ministerial duty’ that

this Court can compel because the BLM has a great deal of discretion in determining how to comply

with state water law.” BLM’s Reply to Mot. Dismiss 6. The EA itself recognizes that, “[a]lthough

9 Plaintiffs’ assert in their response brief that they raised this provision initially in paragraph 53,

but the complaint does not, in fact, cite to 43 C.F.R. § 4120.3-1. See Compl. ¶ 53.

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it is not BLM’s discretion whether the agency would release water in response to calls to satisfy

senior water rights which are downstream from its stock-water reservoirs, BLM does have discretion

how that water would be released.” Chad Decl. Ex. C, at 3. The fact that both parties identify means

outside of those discussed in the EA through which a call for water from the Whites could be

fulfilled emphasizes the BLM’s considerable discretion. See BLM’s Reply to Mot. Dismiss 6; Pls.’

Supplemental Br. 3-4. In sum, allowing plaintiffs’ APA and mandamus claims to proceed would

invite the Court to compel the BLM to take an action - i.e. remove or retrofit twenty reservoirs, or,

alternatively, furnish plaintiffs with an additional 1,400 AUMs - not clearly mandated by statute,

regulation, or any other legal authority.10 As a result, plaintiffs’ first, third, and fourth claims fail at

the pleadings level.

Second, plaintiffs have recourse with the state. As referenced herein, the OWRD is the state

agency charged with administration of the laws governing water resources and one of its functions

is to protect existing water rights. The complaint acknowledges that plaintiffs’ rights are

10 This is because, as noted above, plaintiffs’ lawsuit is primarily concerned with the

implementation of the EA. See, e.g., Compl. ¶¶ 38-42; see also Pls.’ Resp. to Mot. Dismiss 11

(“[t]he problem is that BLM did not do what its Final Decision said it would do; Plaintiffs are

simple trying to hold the agency to its word”); id. at 12 (“the discrete actions that the BLM was

legally required to take was the removal and retrofitting of all twenty (20) reservoirs identified

in the 2008 Final Decision”). However, implementation of an agency action is not subject to

judicial review. See Montana Wilderness Ass’n, Inc. v. U.S. Forest Serv., 314 F.3d 1146, 1150

(9th Cir. 2003), vacated on other grounds by 542 U.S. 917 (2004) (“maintenance activities [that]

implement [the agency’s] travel management and forest plans” did “not fit into any of the

statutorily defined categories for agency action” and were not subject to court review); Cal.

Sportfishing Prot. Alliance v. Fed. Energy Regulatory Comm’n, 472 F.3d 593, 599 (9th Cir.

2006) (“the granting of the license [is] a federal agency action [but] the continued operation of

the project . . . is not a federal agency action”); see also Village of Bald Head Island v. U.S.

Army Corps of Engineers, 714 F.3d 186, 195-96 (4th Cir. 2013) (“project implementation is

neither agency action nor final agency action subject to judicial review under the APA”)

(citations and internal quotations omitted). This rule exists to prevent the plaintiff from

“demand[ing] a general judicial review of the BLM’s day-to-day operations.” Lujan, 497 U.S.

at 899. 

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“enforceable under Title 45 of the Oregon Revised Statutes, O.R.S.§ 536.005, et seq.” Compl. ¶ 49.

Plaintiffs are also coterminously “pursuing action at the state level to compel [OWRD] to enforce

[their] water rights.” Id. at ¶ 53. In light of these circumstances, it is unclear why relief from the state

is not both available and preferable. See Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir.

1998) (in deciding whether to entertain a claim under the Declaratory Judgment Act, “[t]he district

court should avoid needless determination of state law issues . . . If there are parallel state

proceedings involving the same issues and parties pending at the time the federal declaratory action

is filed, there is a presumption that the entire suit should be heard in state court”) (citations omitted). 

In so finding, the Court acknowledges plaintiffs’ assertion that “any remedy afforded by [the

OWRD] is contingent on the BLM removing and retrofitting its water projects.” Compl. ¶ 53.

However, that the OWRD itself cannot go onto BLM land to work on the twenty reservoirs at issue

does not mean no remedy is available with the state. In fact, the OWRD has mechanisms to ensure

compliance with state water rights. See, e.g., Or. Rev. Stat. § 540.370 (granting OWRD authority

to enforce compliance with orders or decree); Or. Admin. R. 690-250-0020 (granting OWRD

authority to determine whether a call for water is futile); Or. Admin. R. 690-250-0120 (granting

OWRD authority to “distribute the surface water and ground water by relative priority”). Thus, as

both the complaint and the parties’ briefs recognize, the OWRD has been involved in ensuring the

BLM’s compliance with state water law. See Compl. Ex. 5, at 109; Chad Decl. Ex. C, at 3; see also

Compl. Ex. 7 (in response to the Whites’ 2014 call for water, the BLM explained that it was

“working closely with OWRD to address [any remaining inadequacies regarding dead storage of

water] and in accordance with direction from OWRD [would] take the necessary actions to release

all possible water when a call in made”). For these reasons, plaintiffs’ remedy at this time lies with

the OWRD and the complaint fails to state a claim upon which relief can be grated.

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RECOMMENDATION

For the foregoing reasons, the BLM’s motion to dismiss (docket # 11) should be GRANTED

and plaintiffs’ complaint (docket # 1) should be DISMISSED. 

SCHEDULING ORDER

The above Findings and Recommendation will be referred to a United States District Judge

for review. Objections, if any, are due by March 9, 2015. If no objections are filed, review of the

Findings and Recommendation will go under advisement on that date. If objections are filed, a

response to the objections is due fourteen days after the date the objections are filed and the review

of the Findings and Recommendation will go under advisement on that date.

DATED this _19th day of February, 2015. 

__/s/ Patricia Sullivan________

Patricia Sullivan

United States Magistrate Judge

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