IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EASON LAND CO., LLC, an Oregon 2:14-cv-00951-SU

limited liability company; JESSE

D. WHITE; and PAMELA J. WHITE, ORDER

Plaintiffs, 

v. 

 

SECRETARY OF THE UNITED STATES

DEPARTMENT OF THE INTERIOR; 

DIRECTOR OF THE BUREAU OF LAND 

MANAGEMENT; DISTRICT MANAGER FOR 

THE VALE DISTRICT OF THE BUREAU 

OF LAND MANAGEMENT; FIELD MANAGER

FOR THE JORDAN FIELD OFFICE, VALE 

DISTRICT OF THE BUREAU OF LAND 

MANAGEMENT; and OREGON STATE 

DIRECTOR OF THE BUREAU OF LAND

MANAGEMENT,

 Defendants.

1 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 1 of 7
BROWN, Judge.

Magistrate Judge Patricia Sullivan issued Findings and

Recommendation (F&R) (#22) on February 19, 2015, in which she

recommends the Court grant Defendants’1 Motion (#11) to Dismiss. 

Plaintiffs filed timely Objections (#24) in this matter and also

filed a Motion (#25) for Leave to File Amended Complaint. The

matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)

and Federal Rule of Civil Procedure 72(b).

I. Findings and Recommendation

When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make

a de novo determination of that portion of the Magistrate Judge's

report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003)(en banc). 

This Court has carefully considered Plaintiffs’ Objections

and concludes the Objections do not provide a basis to modify the

Findings and Recommendation. The Court also has reviewed the

pertinent portions of the record de novo and does not find any

error in the Magistrate Judge's Findings and Recommendation.

Accordingly, on this record the Court adopts Judge

Sullivan’s Findings and Recommendation.

1

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

2 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 2 of 7
II. Motion for Leave to Amend Complaint

Federal Rule of Civil Procedure 15(a) provides a party may

amend a pleading after a responsive pleading has been filed only

by leave of court unless the opposing party consents to the

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

"shall be freely given when justice so requires." This policy is

to be applied with "extreme liberality." Moss v. United States

Secret Svc., 572 F.3d 962, 972 (9th Cir. 2009).

The Supreme Court has recognized several factors that a

district court should consider when determining whether justice

requires the court to grant leave to amend. Those factors

include “undue delay, bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party . . . ,

[and] futility of the amendment.” Carvalho v. Equifax Info.

Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010)(quoting Foman

v. Davis, 371 U.S. 178, 182 (1962)). The factor that carries the

greatest weight is whether the amendment will cause the opposing

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

1048, 1052 (9th Cir. 2003). "Absent prejudice or a strong

showing of any of the remaining Foman factors, there exists a

presumption under Rule 15(a) in favor of granting leave to

amend." Id. "Delay alone no matter how lengthy is an

insufficient ground for denial of leave to amend." United States

3 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 3 of 7
v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). See also Quantum

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

2011 WL 2214659 (9th Cir. Jun 07, 2011))(same). The party who

opposes amendment bears the burden to show prejudice. Adam v.

Hawaii, 235 F.3d 1160, 1164 (9th Cir. 2000)(overruled on other

grounds)(citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187

(9th Cir. 1987)).

A proposed amendment to a complaint "'is futile only if no

set of facts can be proved under the amendment . . . that would

constitute a valid and sufficient claim.'" Sweaney v. Ada Cnty.,

Idaho, 119 F.3d 1385, 1393 (9th Cir. 1997)(quoting Miller v.

Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). See

also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th

Cir. 2008)(proposed amendment to a complaint is futile when the

“complaint could not be saved by any amendment.”). A plaintiff

should be afforded an opportunity to test his claim on the merits

rather than on a motion to amend unless it appears beyond doubt

that the proposed amended complaint would be dismissed for

failure to state a claim under Federal Rule Civil Procedure

12(b)(6). Miller, 845 F.2d at 214. See also AmerisourceBergen

Corp. v. Dialysist W., Inc., 465 F.3d 946, 957 (9th Cir. 2006).

Although Plaintiffs maintain Magistrate Judge Sullivan erred

when she recommended dismissal of their Complaint (#1),

4 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 4 of 7
Plaintiffs now move to amend their Complaint in an attempt to

cure any deficiencies in the original Complaint. In a proposed

amended complaint attached to Plaintiffs’ Motion to Amend,

Plaintiffs plead significant additional factual material to

support their claim that Defendants improperly implemented the

BLM’s Final Decision to retrofit or to remove 20 reservoirs on

BLM land for the purpose of complying with Oregon water law and

not interfering with Plaintiffs’ senior, downstream water rights. 

In their proposed amended complaint, Plaintiffs retain their

claims for a writ of mandamus, declaratory relief, and relief

pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 

§ 706(1). Plaintiffs, however, abandon their claim brought in

their original Complaint under § 706(2) of the APA.

Defendants, in turn, contend Plaintiffs’ Motion to Amend

should be denied because Plaintiffs do not and cannot identify 

in their remaining APA claim any action that Defendants have

taken in which the “‘agency has ignored a specific legislative

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

(quoting Hells Canyon Pres. Council v. U.S. Forest Serv., 593

F.3d 923, 932 (9th Cir. 2010)).

After a thorough review of Plaintiffs’ proposed amended

complaint, the Court concludes Plaintiffs’ proposed amendment 

5 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 5 of 7
would be futile. As Judge Sullivan noted, because neither

mandamus (28 U.S.C. § 1361) nor the Declaratory Judgment Act (28

U.S.C. § 2201) provide a stand-alone waiver of sovereign

immunity, Plaintiffs’ claim under § 706(1) of the APA is the only

possible authority to support Plaintiffs’ claim for waiver of

sovereign immunity in Plaintiffs’ proposed amended complaint. 

F&R (#22) at 10-11. 

The additional factual allegations in Plaintiffs’ proposed

amended complaint are primarily concerned with the implementation

of the BLM's Environmental Assessment and Final Decision. As

Judge Sullivan concluded in the F&R adopted herein, however,

“implementation of an agency action is not subject to judicial

review,” and Plaintiffs have failed to allege or to identify any

nondiscretionary action mandated by legislative command that

Defendants have failed to perform timely. F&R (#22) at 16-19 and

n.10. Thus, Plaintiffs’ claim under § 706(1) is not viable even

as pled in Plaintiffs’ proposed amended complaint. Plaintiff has

not made a showing that any other unpled claims could provide a

valid waiver of sovereign immunity.

Accordingly, because Plaintiffs have failed to plead a

viable claim under § 706(1) of the APA and because neither

Plaintiffs’ claims for mandamus nor declaratory relief provide a

stand-alone waiver of sovereign immunity, the Court concludes on

this record that Plaintiffs’ proposed amendment to their

6 - ORDER

Case 2:14-cv-00951-SU Document 32 Filed 04/07/15 Page 6 of 7
Complaint would be futile.

CONCLUSION

For these reasons, the Court ADOPTS Magistrate Judge

Sullivan’s Findings and Recommendation (#22) and, therefore,

GRANTS Defendants’ Motion (#11) to Dismiss Plaintiffs’ Complaint

in its entirety. The Court also DENIES Plaintiffs’ Motion (#25)

for Leave to File Amended Complaint. The Court, therefore,

DISMISSES Plaintiffs’ Complaint (#1) with prejudice.

IT IS SO ORDERED.

DATED this 7th day of April, 2015.

/s/ Anna J. Brown

____________________________

ANNA J. BROWN

United States District Judge

7 - ORDER

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