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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Judge John L. Kane

Civil Action No. 11-cv-02428-AP

JAMES KLEINERT,

SPIRIT RIDERS FOUNDATION, a New Mexico nonprofit corporation, and

DAVID GLYNN,

Plaintiffs,

v.

KENNETH SALAZAR, in his official capacity as Secretary, United States Department of

Interior,

ROBERT ABBEY, in his official capacity as Director, Bureau of Land Management,

STEVE BEVERLIN, in his official capacity as Field Manager Dolores Public Lands

Office (BLM/USFS),

SALLY E. WISELY, in her official capacity as BLM Colorado State Director,

CONNIE CLEMENTSON, in her official capacity as Field Officer Dolores Public Lands

Office (BLM/USFS), and

GREG SHOOP, in his official capacity as District Manager Royal Gorge Field Office,

Defendants.

ORDER

Kane, J.

On September 14, 2011, Plaintiffs filed a complaint challenging two Bureau of Land

Management environmental assessments and records of decision under the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Wild Free Roaming Horses and

Burros Act of 1971, 16 U.S.C. § 1331 et seq. As Plaintiffs properly noted, the Administrative

Procedure Act, 5 U.S.C. § 500, et seq., provides the framework for their challenge. See

Complaint (doc. 1) at ¶ 30 (citing the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.). 

Despite the fact that Plaintiffs’ complaint clearly challenged a final agency action, the

case was assigned by random-draw to Judge Christine Arguello. This assignment was directly

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 For obvious reasons, a final agency decision before the district court for appellate

review under the Administrative Procedure Act is not subject to discovery under either Fed. R.

Civ. P. 16 or 26. 

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contrary to D.C.COLO.LCivR 40.1(D), which expressly provides for the assignment of such

cases to this court’s “AP” docket. 

Unfortunately, Judge Arguello failed to notice this oversight, instead treating the case as

an ordinary civil case. She considered and denied Plaintiffs’ Emergency Motion for Temporary

Restraining Order, in the process ordering the parties to submit simultaneous briefing addressing

whether Plaintiffs had standing to challenge the Bureau of Land Management’s actions. Order

Denying Plaintiffs’ Emergency Motion without Prior Notice and Directing Further Briefing on

Standing (doc. 11). Further compounding matters, Judge Arguello referred the case to

Magistrate Judge Boyd N. Boland for all nondispositive proceedings, including discovery.1

Order Referring Case (doc. 13). 

In compliance with Judge Arguello’s order, Defendants submitted their brief addressing

Plaintiffs’ standing on September 26, 2011. Plaintiffs filed a Request for Clarification and

Unopposed Motion for Extension of Time to File Briefs on Issue of Standing, noting that they

had not yet served Defendants and intended to file an amended complaint. Before Judge

Arguello could rule on this motion, however, Plaintiffs filed and Judge Arguello granted a

Motion to Recuse based on Judge Arguello’s past professional and current personal relationship

with Defendant Ken Salazar, the Secretary of the Interior, and this case was reassigned to Judge

William Martinez, once again in contravention of D.C.COLO.LCivR 40.1(D).

Judge Martinez also failed to recognize the fact that this case was an appeal of a final

agency action that should have been assigned to the “AP” docket for further proceedings. He

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 For another example of the consequences of failing to properly assign, or seek reassignment of, a case to the “AP” docket, see Sherer v. U.S. Forest Serv., et al., 720 F. Supp. 2d

1080 (D. Colo. 2010) (case originally filed as declaratory judgment class action and ultimately

reviewed, after extensive (two year) pretrial proceedings including an aborted appeal to the

Tenth Circuit on finality/subject matter jurisdiction grounds, on the administrative record under

the Adminstrative Procedure Act).

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denied as moot Plaintiffs’ motion, finding briefing on the issue of standing to be unnecessary at

this early stage of the proceedings, at which point this case resumed its journey through the

court’s civil docket and back to Magistrate Judge Boland’s in accordance with Judge Arguello’s

original referral. Finally, prompted by the setting of a Rule 16 Scheduling Conference, on

October 20, 2011, over a month after Plaintiffs’ filed their complaint, Defendants filed a motion

seeking reassignment of this case to the “AP” docket. 

To be blunt, the failure to recognize this action as an agency appeal and properly assign it

at the time of filing, initial assignment, or re-assignment is bewildering. As evidenced by the

proceedings in this case, the failure to properly assign cases to the AP docket has real

consequences, including squandering the resources of both the parties and the court and

unnecessarily delaying proceedings.2

 The duty to understand and comply with the local rules

regarding assignment of cases to the “AP” docket is borne both by staff in the clerk’s office and

judicial officers. Although the clerk’s office bears the initial responsibility for screening and

assigning cases, judicial officers should also assess the nature of cases assigned to them and

consider whether they are appellate in nature and therefore inappropriate for referrals for

discovery proceedings. 

I take this opportunity to note that the benefit of the “AP” docket lies in its consistent and

timely application of the procedural and substantive requirements dictated by the Adminstrative

Procedure Act and articulated by the Tenth Circuit in Olenhouse v. Commodity Credit Corp., 42

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 In formulating this plan, counsel should refer to the Instructions for Preparation of Joint

Case Management Plan for Petitions for Review of Agency Action in Environmental Cases

located on the Judicial Officer’s Procedures page of the court’s internet site. 

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F.3d 1560 (10th Cir. 1994). The procedures envisioned by this court in creating the “AP” docket

are not exclusive; on the contrary they can be implemented by any judicial officer who

recognizes his or her function as a quasi-appellate body when reviewing an administrative

agency’s decision on the record. See Olenhouse, 42 F.3d at 1580. 

In any case, the required procedures have not been followed in this case. Because this

case has now been properly assigned to the AP docket, however, it is ordered that the Order of

Reference to Magistrate Judge (doc. #13), entered September 21, 2011, is VACATED. Within

20 days from the filing of an answer, the parties shall meet and confer in order to adopt a Joint

Case Management Plan.3

 Counsel should try in good faith to agree upon matters covered in the

Plan. Any area of disagreement should be set forth with a brief statement concerning the basis

for the disagreement.

Counsel shall submit a proposed Joint Case Management Plan no later than November

24, 2011.

Dated: October 25, 2011 BY THE COURT:

/s/ John L. Kane 

Senior U.S. District Court Judge

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