What lawyer was it said that they thought these type of cases werent argued anymore?That is pretty much like saying the U.S. Constitution isnt valid anymore. When the laws are on "our side" we have to fight to get those laws enforced, or they will be lost. Another of my dear ole moms favorite sayings, "Use it or you lose it." I guess this can be said for our rights also.
Pawlenty will appeal judge's ruling on unallotment
Judge Kathleen Gearin "has inserted herself into a political dispute," Pawlenty said.
By BAIRD HELGESON, Star Tribune
Last update: December 31, 2009 - 1:12 PM
Saying a judge overreached and misinterpreted the law, Gov. Tim Pawlenty said Thursday he will appeal a ruling that challenged his unilateral budget cuts imposed this summer.
"The judge has inserted herself into a political dispute," Pawlenty said at a news conference.
"That degree of involvement by the court is concerning, to say the least," he said. "We believe the judge misapplied and misinterpreted the statute in significant ways."
It's was Pawlenty's first detailed response to a judge's ruling Wednesday that said the governor the "trod upon the constitutional power of the Legislature" when he unilaterally cut $2.7 billion from the budget last summer using a procedure called unallotment.
Ramsey County District Judge Kathleen Gearin said that unallotment is constitutional but that Pawlenty misused it by making unilateral cuts after the legislature had adjourned.
"If we can't use unallotment now, I don't know when we could," Pawlenty said, noting that state is in the worst financial crisis since World War II. "I believe she misinterpreted that."
Since the appeal process could be lengthy, the Republican governor said he will work with DFL lawmakers to resolve the immediate financial dilemma when the Legislature convenes Feb. 4.
Most of the cut doesn't kick in until the 2011 fiscal year, leaving time for the two sides the reach an agreement, Pawlenty said.
But the governor raised the possibility of more unilateral cuts if no agreement can be reached, saying he might use the newly projected $1.2 billion deficit as justification.
In the ruling, Gearin said: "The authority of the governor to unallot is an authority intended to save the state in times of a previously unforeseen budget crisis. It is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiations with the Legislature or to rewrite the appropriations bill."
The judge issued a temporary restraining order reinstating money for a small nutrition program for the poor that Pawlenty cut from the budget. Several people in the program filed a lawsuit and wanted the judge to restore the money while their case proceeds.
"We believe Judge Gearin's opinion is well reasoned and correct," said Galen Robinson, an attorney for the people who filed suit. "If there is an appeal, we assume the decision will be upheld."
While Gearin's ruling deals only with the food program, the decision opens the door for other agencies or groups to file suit to get their money restored, potentially unraveling at least part of the governor's emergency cuts.
http://www.startribune.com/politics/state/80427142.html?elr=KArksUUUU
Thursday, December 31, 2009
Wednesday, December 9, 2009
DOJ Sued over Internet Sluthing Methods
DoJ sued for sleuthing practices on Facebook, TwitterDecember 5, 2009 — 9:28pm ET By Judi Hasson
The Department of Justice and five other governmental agencies were sued lastweek by a privacy watchdog group for using Facebook, Twitter and other socialnetworks to investigate citizens in criminal and other matters. The ElectronicFrontier Foundation wants to know exactly how the feds are using socialnetworking to gather information in investigations.The suit comes as Congress is considering legislation to increase protectionsfor consumers who use social networking sites. So far, the government is stayingmum how it is leveraging these new tools in investigations and what it iscollecting from the Internet.In addition to the Justice Department, the suit names other agencies, including:the Department of Defense, DHS, the CIA, the Department of Treasury and theOffice of the Director of National Intelligence."Although the Federal Government clearly uses social networking websites tocollect information, often for laudable reasons, it has not clarified the scopeof its use of social-networking websites or disclosed what restrictions andoversight is in place to prevent abuse," the lawsuit said.Law enforcement usually needs a warrant to collect information, but it's unclearwhere social networks stand in terms of the right to protect information that ispublicly available for everyone to see.For more on this lawsuit:- see this eWeek.com articleRelated Articles:FBI cannot handle load of electronic evidenceFBI: Hackers target social networksNSA uses Facebook, tooFederal agencies try TwitterGet Your FREE FierceGovernmentIT Email Newsletter:http://www.fiercegovernmentit.com/story/doj-sued-sleuthing-practices-facebook-tw\itter/2009-12-05?utm_medium=nl&utm_source=internal
The Department of Justice and five other governmental agencies were sued lastweek by a privacy watchdog group for using Facebook, Twitter and other socialnetworks to investigate citizens in criminal and other matters. The ElectronicFrontier Foundation wants to know exactly how the feds are using socialnetworking to gather information in investigations.The suit comes as Congress is considering legislation to increase protectionsfor consumers who use social networking sites. So far, the government is stayingmum how it is leveraging these new tools in investigations and what it iscollecting from the Internet.In addition to the Justice Department, the suit names other agencies, including:the Department of Defense, DHS, the CIA, the Department of Treasury and theOffice of the Director of National Intelligence."Although the Federal Government clearly uses social networking websites tocollect information, often for laudable reasons, it has not clarified the scopeof its use of social-networking websites or disclosed what restrictions andoversight is in place to prevent abuse," the lawsuit said.Law enforcement usually needs a warrant to collect information, but it's unclearwhere social networks stand in terms of the right to protect information that ispublicly available for everyone to see.For more on this lawsuit:- see this eWeek.com articleRelated Articles:FBI cannot handle load of electronic evidenceFBI: Hackers target social networksNSA uses Facebook, tooFederal agencies try TwitterGet Your FREE FierceGovernmentIT Email Newsletter:http://www.fiercegovernmentit.com/story/doj-sued-sleuthing-practices-facebook-tw\itter/2009-12-05?utm_medium=nl&utm_source=internal
Sunday, November 1, 2009
California Court of Appeals finds no emotional distress in vet's negligence
October 31, 1:19 PM Seattle Pet Laws ExaminerJean-Pierre Ruiz
Earlier this year, the California Court of Appeals found that a veterinarian’s negligence causing the death of the Plaintiff’s dog and later cover-up was conduct that was neither extreme nor outrageous enough to support a cause of emotional distress because she was neither a witness nor a direct victim. The Court also ruled that the Plaintiff could not recover for the peculiar value of the dog because “peculiar value” does not include “emotional attachment.” Finally, the Court declined to extend the loss of companionship tort to actions involving companion animals.
In McMahon v. Craig, No G040324, slip op at 2 (Cal. Ct. App. July 31, 2009), Plaintiff Gail McMahon, an owner and occasional breeder of Maltese show dogs, brought emotional distress and loss of companionship claims after one of her Maltese, Tootsie, died of likely aspiration pneumonia while under the care of veterinarian Diane Craig. Ms. McMahon had taken Tootsie to
Dr. Craig to correct the dog’s laryngeal paralysis, causing respiratory distress. In her complaint, Ms. McMahon alleged that Dr. Craig negligently fed her dog too soon after surgery.
During pre-surgery consultations, Ms. McMahon told Dr. Craig “about Tootsie’s history, described her strong bond to Tootsie, and stated she would do whatever she could, regardless of cost, to help [Tootsie].” Friends of Ms. McMahon even wrote letters to Dr. Craig explaining “the special bond” Ms. McMahon had with Tootsie. At trial, Ms. McMahon alleged that Dr. Craig “understood Tootsie’s peculiar value to McMahon, and that McMahon would be emotionally devastated if Tootsie died.” Dr. Craig advised Ms. McMahon that aspiration pneumonia was the greatest post-operative risk. Ms. McMahon testified that she understood food and water would be withheld from Tootsie for 24 hours following surgery to reduce the risk of aspiration pneumonia. Nevertheless, Dr. Craig ordered a technician to feed Tootsie a mixture of water and baby food two hours after the surgery “to test [Tootsie’s] ability to swallow.” Tootsie immediately aspirated the mixture into her lungs, thereby acquiring aspiration pneumonia. Dr. Craig advised Ms. McMahon but claimed that Tootsie had only been given water while promising that this was not a major setback and that Tootsie would receive the best care and be closely monitored. Dr. Craig thus failed to tell Ms. McMahon that Tootsie had been fed a mixture of baby food and water, and further failed to tell Ms. McMahon that “the pneumonia posed a serious, life threatening situation.” Adding insult to injury, and contrary to Dr. Craig’s promise, Tootsie was placed in a cage and left unmonitored in the back of the hospital. No antibiotics, oxygen, glucose, and other supportive care necessary to sustain life in a critical patient were provided by Dr. Craig. Around midnight that day, Tootsie died. She discovered by accident the next day by a technician who was checking on another day. Hence, by Dr. Craig’s negligence and lack of care, not to say professionalism, Tootsie died by herself in a cage, in a place she was not familiar with, alone with her fears and, no doubt, pain at being separated from those she loved and had promised to care for her.
Following Tootsie’s death, Dr. Craig denied in a letter that Tootsie had been given any food and alleged that Tootsie was never left alone and was under constant care. Dr. Craig further claimed that Tootsie’s death was due to her aspiring her own excrement. Ms. McMahon requested Tootsie’s medical records but Dr. Craig withheld the part which showed that Tootsie had been fed some baby food. Ms. McMahon obtained the complete records from a third-party and Dr. Craig altered her records to reflect the data that Ms. McMahon had obtained independently. A necropsy showed that Tootsie had likely died from aspiriting baby food. Adding icing on the cake, three days after Tootsie’s death, Dr. Craig directed that Ms. McMahon’s credit card be charged for all unpaid services rendered Tootsie for which Ms. McMahon had not even given her consent!
The Court correctly reasoned that Ms. McMahon “was neither a witness nor a direct victim of [the] defendants’ negligent acts” and thus could not obtain emotional distress damages for negligence. However, the Court also found no value in Ms. McMahon’s allegation that she had a special bond with Tootsie similar to the patient-doctor relationship that imposed a duty on Dr. Craig to avoid causing her emotional distress. The Court reasoned that, though Ms. McMahon had hired Dr. Craig, this latter’s “care”(?) had been directed at Tootsie, not Ms. McMahon. Finding Dr. Craig’s conduct insufficiently outrageous, it struck an intentional infliction of emotional distress claim. Finally, it limited proof of special value to those attributes “evidenced by the original cost, and the quality and condition at the time of the loss.” The Court, however, “endorsed” the pet industry’s argument that: “permitting plaintiffs to recover emotional distress damages for harm to a pet would likely increase litigation and have a significant impact on the courts limited resources.” The Court ignored, willingly or unwillingly, evidence that shows that the industry’s argument is without foundation. As Christopher Green noted in his law review article, The Future of Veterinary Malpractice Liability in the Care of Companion Animals, 10 Animal L. 163, 176-77 (2004): “Louisiana, Texas, and Florida each first awarded punitive or emotional damages for companion animal harm in the early 1960s, yet no deluge from ‘opening the floodgates of litigation’ ever materialized in any of those states during the forty years hence.”
In 2002, the Illinois legislature enacted perhaps the most comprehensive law on damages in companion animal negligence cases. Titled the Humane Care for Animals Act; the statute provides that: “[d]amages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner.” Even so, there has been no flood of emotional distress claims in Illinois so far.
The Court, recognizing that “California law does not allow parents to recover for the loss of companionship of their children,” did not allow Ms. McMahon “to recover for loss of the companionship of a pet.” Lastly, it ordered Ms. McMahon to pay Dr. Craig’s appeal costs.
What is sadly not surprising, but always saddening, is that the veterinary and pet industries (e.g., California Veterinary Medical Association) filed a number of briefs in support of the Defendant and later praised the Court’s decision. The Animal Health Institute, members of which purportedly “invest hundreds of millions of dollars on the innovations, research and science necessary for advances in pharmaceuticals, biologics, and pesticides for animals,” asserted that a contrary result would actually hurt pets. Of course, unsaid is how exactly a decision which would support emotional distress in case of veterinary malpractice would hurt the pets. What is clear is how it would hurt vets who are unprofessional and/or negligent.
Until legislatures across the county accept the fact that there is a human-animal bond and that the death of a companion animal does indeed cause emotional distress, whether one witnesses the death or not, veterinary negligence will go uncompensated. When the courts further limit the measure of an animals’ worth to its “market value”, one could argue that veterinary malpractice will perhaps also go unabated. The McMahon decision gives unethical veterinarian reason to rejoice. It should also provide pause for animal caretakers to be very careful indeed when choosing a veterinarian and certainly, for those living in Irvine (CA), to avoid using the services of Dr. Diane Craig and/or her hospital, Veterinary Surgical Specialists, Inc., and Advanced Veterinary Specialty Group, LLC.
For more info: McMahon v. Craig: declarationsandexclusions.typepad.com/files/court-of-appeal-opinion---g040324.pdf.
http://www.examiner.com/x-9726-Seattle-Pet-Laws-Examiner~y2009m10d31-California-Court-of-Appeals-finds-no-emotional-distress-in-vets-negligence?cid=examiner-email
Thursday, October 29, 2009
New Head of Boston Bar a Civil Gideonite!
SOUTH SHORE INSIDER: Milton attorney John Regan, new president of Boston Bar Association
Milton attorney brings agenda to his new role
Gary Higgins/The Patriot Ledger
John Regan of Milton is serving a one-year term as the new president of the Boston Bar Association.
By Brent Lang
The Patriot Ledger
Posted Oct 28, 2009 @ 01:51 AM
Last update Oct 28, 2009 @ 01:59 AM
--------------------------------------------------------------------------------
BOSTON —
JOHN REGAN
John Regan has had a long career as an attorney specializing in intellectual property litigation. Though he has a demanding schedule as a partner at the Boston office of the law firm WilmerHale, Regan last month began devoting a substantial chunk of time to his one-year term as the new president of the Boston Bar Association.
The 9,500-member association emphasizes community service and increasing access to legal services. Those are values that Regan, 59, a Milton resident, exemplifies through his personal philanthropy and professional affiliations. In addition to his current role at the helm of the association, Regan co-chairs WilmerHale’s pro bono and community service committee, managing the contributions of more than 1,000 lawyers spread across 13 offices worldwide.
Why did you volunteer to be president of the Boston Bar Association?
I’ve never volunteered to do anything at the BBA. I’ve always been asked. A lawyer who was then president called me and asked me if I’d get in line for this. I gave all the usual reasons why I couldn’t do it and then was ultimately persuaded why I should do it.
What is the most important role that the association serves?
The BBA is a convener. If I don’t know somebody, I can say to the BBA staff, I need somebody who has this particular skill set. They would know exactly who to ask, because of their experience. When you get the right people in the room and they come with that attitude about getting the job done, and understanding that they have a defined task, things just get done.
How is the Boston Bar Association working to encourage greater diversity in the legal profession?
There was a task force that was created. They put together a plan to try to address this challenge, which is complex. There’s the question of when people actually become lawyers how do you mentor them and bring them into the network. Then, when they are employed, how do they move between positions, between the public and the private sector or between firms of different sizes.
It led us into a whole exciting relationship with what we call six affinity bar associations. The BBA is one of any number of bar associations in Massachusetts, but there are a series of bar associations that are organized around a racial or ethnic identity. The Massachusetts Black Lawyers Association, the Massachusetts Black Women Lawyers Association, the Asian American Lawyers Association. The South Asian lawyers, the gay, lesbian, bisexual, transgender, lawyers, the Hispanic lawyers, they have groups.
What we’ve done is create a section called the diversity inclusion section. They’ve invited the six presidents of those diversity bar associations to be on the steering committee. It’s a new way of thinking about things as opposed to everybody operating in their own orbits and periodically getting together.
What is the Civil Gideon Initiative?
It’s called Civil Gideon because there was a famous Supreme Court case called Gideon v. Wainwright, in which the court decided if someone was accused of a certain level of a crime, you were constitutionally entitled to have a lawyer represent you. The idea of Civil Gideon is that there are certain essential human needs like custody of your children, housing, for which people should have a lawyer.
There is a question about whether it makes a difference, about whether somebody who walks in and is a sympathetic tenant ultimately winds up with the same result. So with others, the Boston Bar Association put together a proposal which received funding on the order of $300,000 from the Boston Bar Foundation, the Massachusetts Bar Foundation, and the Boston Foundation, to do pilot programs in the Quincy District Court and the Lynn District Court. We have legal service agencies collecting data on outcomes in eviction cases for tenants who had lawyers and tenants who didn’t. Conceptually it started two years ago. I think that they expect to have the data some time early next year.
Why do you think pro bono and volunteer work is important for lawyers?
I think most people you would talk to would say that going off and doing that lets you come back to the billable work energized. I’ve been in the legal profession for awhile. I think at some point you have to give something back to the system.
http://www.patriotledger.com/business/x876589910/SOUTH-SHORE-INSIDER-Milton-attorney-John-Regan-new-president-of-Boston-Bar-Association
Milton attorney brings agenda to his new role
Gary Higgins/The Patriot Ledger
John Regan of Milton is serving a one-year term as the new president of the Boston Bar Association.
By Brent Lang
The Patriot Ledger
Posted Oct 28, 2009 @ 01:51 AM
Last update Oct 28, 2009 @ 01:59 AM
--------------------------------------------------------------------------------
BOSTON —
JOHN REGAN
John Regan has had a long career as an attorney specializing in intellectual property litigation. Though he has a demanding schedule as a partner at the Boston office of the law firm WilmerHale, Regan last month began devoting a substantial chunk of time to his one-year term as the new president of the Boston Bar Association.
The 9,500-member association emphasizes community service and increasing access to legal services. Those are values that Regan, 59, a Milton resident, exemplifies through his personal philanthropy and professional affiliations. In addition to his current role at the helm of the association, Regan co-chairs WilmerHale’s pro bono and community service committee, managing the contributions of more than 1,000 lawyers spread across 13 offices worldwide.
Why did you volunteer to be president of the Boston Bar Association?
I’ve never volunteered to do anything at the BBA. I’ve always been asked. A lawyer who was then president called me and asked me if I’d get in line for this. I gave all the usual reasons why I couldn’t do it and then was ultimately persuaded why I should do it.
What is the most important role that the association serves?
The BBA is a convener. If I don’t know somebody, I can say to the BBA staff, I need somebody who has this particular skill set. They would know exactly who to ask, because of their experience. When you get the right people in the room and they come with that attitude about getting the job done, and understanding that they have a defined task, things just get done.
How is the Boston Bar Association working to encourage greater diversity in the legal profession?
There was a task force that was created. They put together a plan to try to address this challenge, which is complex. There’s the question of when people actually become lawyers how do you mentor them and bring them into the network. Then, when they are employed, how do they move between positions, between the public and the private sector or between firms of different sizes.
It led us into a whole exciting relationship with what we call six affinity bar associations. The BBA is one of any number of bar associations in Massachusetts, but there are a series of bar associations that are organized around a racial or ethnic identity. The Massachusetts Black Lawyers Association, the Massachusetts Black Women Lawyers Association, the Asian American Lawyers Association. The South Asian lawyers, the gay, lesbian, bisexual, transgender, lawyers, the Hispanic lawyers, they have groups.
What we’ve done is create a section called the diversity inclusion section. They’ve invited the six presidents of those diversity bar associations to be on the steering committee. It’s a new way of thinking about things as opposed to everybody operating in their own orbits and periodically getting together.
What is the Civil Gideon Initiative?
It’s called Civil Gideon because there was a famous Supreme Court case called Gideon v. Wainwright, in which the court decided if someone was accused of a certain level of a crime, you were constitutionally entitled to have a lawyer represent you. The idea of Civil Gideon is that there are certain essential human needs like custody of your children, housing, for which people should have a lawyer.
There is a question about whether it makes a difference, about whether somebody who walks in and is a sympathetic tenant ultimately winds up with the same result. So with others, the Boston Bar Association put together a proposal which received funding on the order of $300,000 from the Boston Bar Foundation, the Massachusetts Bar Foundation, and the Boston Foundation, to do pilot programs in the Quincy District Court and the Lynn District Court. We have legal service agencies collecting data on outcomes in eviction cases for tenants who had lawyers and tenants who didn’t. Conceptually it started two years ago. I think that they expect to have the data some time early next year.
Why do you think pro bono and volunteer work is important for lawyers?
I think most people you would talk to would say that going off and doing that lets you come back to the billable work energized. I’ve been in the legal profession for awhile. I think at some point you have to give something back to the system.
http://www.patriotledger.com/business/x876589910/SOUTH-SHORE-INSIDER-Milton-attorney-John-Regan-new-president-of-Boston-Bar-Association
Tuesday, October 27, 2009
Update on the Civil Gideon Movement
CA Pilot Program to Expand Counsel in Areas of Critical Need
On Oct. 11, 2009, Governor Arnold Schwarzenegger signed into law AB 590, the Sargent Shriver Civil Counsel Act, which provides funding for a six-year pilot program to test the effectiveness of significantly expanding access to counsel in certain types of civil cases. The pilot program, which will begin in July 2011, is funded by a $10 surcharge on certain post-judgment fees and is expected to raise some $10 million per year.
Pilot projects are to be partnerships between a court, a lead legal services agency, and other community legal services providers, with the use of pro bono resources specifically encouraged. A competitive grant process will select the participating counties, courts, and legal services agencies. The law funds representation in housing, domestic violence, conservatorship, guardianship, and elder abuse cases, as well as actions by parents seeking sole custody of children. Litigants with income under 200 percent of the federal poverty level (in 2009, $36,620 for a family of 3) are eligible, although representation is not guaranteed. A report evaluating the program is required by January 2016, and must cover (among other things), the allocation by case type of pilot funding, the impact of counsel on equal access to court, and data on the impact of the pilot program on families and children.
This development is getting significant attention around the country; for links to some of the media coverage see the recent developments page of www.civilrighttocounsel.org.
Alaska Supreme Court Declines to Rule on
Right to Counsel
In August the Alaska Supreme Court dismissed Office of Public Advocacy v. Alaska Court System, an appeal that had arisen out of a custody case (Gordanier v. Jonnson) involving an unrepresented mother's request for appointment of counsel when her opponent was represented by a private agency. An indigent party in Alaska has a statutory right to counsel when the opponent is represented by a public agency. Originally the Alaska Court System was directed to appoint counsel to represent the mother, with the court citing the due process and equal protection clauses of Alaska's Constitution. The trial court later changed its ruling to appoint the Alaska Office of Public Advocacy to represent the mother, citing statutory and equal protection grounds. The Office of Public Advocacy appealed.
Oral argument was heard in May, and subsequently the Supreme Court asked for briefing on mootness, expressing concern that the due process issue had not been cross appealed by the court system and that the state had not actively litigated the case. Despite briefing from OPA and amici disputing mootness, the Supreme Court dismissed the case. The positive trial court ruling therefore stands, although it lacks precedential value. For more see the June 2009 issue of Civil Right to Counsel Update.
Alaska advocates, frustrated but not disheartened, have regrouped and are seeking another matter to bring before the high court. Given the exposure that this case received, the next case likely will both place the due process issue squarely before the Court, and involve the state's active participation. In Gordanier, the state had been invited to participate at the trial court level, but declined. Although the State of Alaska represented the Office of Public Advocacy on appeal, the Supreme Court appears to be seeking the state's independent involvement. Stay tuned...
Orientation at New Law School Emphasizes Right to Counsel
The first new public California law school in over 40 years--at the University of California at Irvine--opened this fall. The university enticed noted constitutional scholar Erwin Chemerinsky to serve as founding dean, and the student orientation--reflecting Chemerinsky's conviction that the students should consider questions of access to justice--was built around the right to counsel in civil cases.
Before arriving, students were to have read the U.S. Supreme Court opinions in Gideon v. Wainwright and Lassiter v. Dept. of Social Services. Following a lecture on briefing a case, they broke into small groups and discussed the cases' rationale. Students then briefed both sides of a case involving whether alleged gang members should, at a hearing to consider a gang injunction they might later be punished for violating, have a constitutional right to a lawyer. At a luncheon presentation, retired Court of Appeal Justice (and active NCCRC participant) Earl Johnson introduced the students to the broader international perspective on the right to counsel issue, as well as the ABA resolution and the activities of NCCRC. Later the students viewed the film Gideon's Trumpet, made brief arguments on the gang injunction issue, and watched veteran appellate lawyers argue the same hypothetical case before Ninth Circuit Court of Appeal Judge Richard Paez, a former Director of Litigation at the Legal Aid Foundation of Los Angeles. The orientation concluded with an address by California Supreme Court Justice Carlos Moreno on access to justice. The students reported they found the orientation based on the right to counsel issue "engaging, relevant, and well-conceived."
NCCRC to Conduct Two Panels at
Nov. NLADA Conference
If you'll be attending the National Legal Aid and Defender Association annual conference in November, be sure to check out one or both of the sessions NCCRC will offer. The first, "Rowing Upstream: Passing Laws and Finding Resources for the Right to Counsel Despite Tough Economic Times," will explore how some states have managed to enact laws in the last decade that either expanded the right to counsel in civil cases or improved the quality of appointed counsel, even during severe economic strain. Presenters will include two NCCRC members: Laura Abel of the Brennan Center, who will also moderate, and Mimi Laver of the ABA Center on Children and the Law. The second session, "The Power of Pilots: Expanding the Right to Counsel By Example," will examine Massachusetts' and California's pilot programs: why they were pursued, what goals the designers had, and how the legislature (for Calif.) and private funders (for Mass.) were convinced to fund the pilots. Presenters for the "Pilots" session will be NCCRC members Earl Johnson, former California Court of Appeal Justice now affiliated with the Western Center on Law and Poverty, and Jayne Tyrrell of the Massachusetts IOLTA Committee; John Pollock, ABA Section on Litigation Civil Right to Counsel Fellow, will moderate. Thanks go to Sharon Rubenstein, who helped develop the two proposals. And a heads-up: civil right to counsel sessions at past NLADA conferences have been standing room only, so get there early!
Cert. Petition Filed in Texas Case
A petition for certiorari is before the U.S. Supreme Court in Rhine v. Deaton, a civil right to counsel case from Texas. In Rhine, the state sought to terminate the parental rights of Ms. Rhine, whose child was already in foster care. On the same day the state dropped its suit due to a rapidly approaching deadline, the foster parents filed a petition to terminate Ms. Rhine's parental rights. Because the Texas statute governing termination of parental rights only provides appointed counsel for indigent parents in suits brought by a "governmental entity," not a private party, Ms. Rhine was denied appointed counsel.
On appeal, the Texas Court of Appeals remanded for a ruling on whether the lower court should exercise discretion to appoint counsel for Ms. Rhine; the trial court found appointment was not necessary. In her petition for review to the Texas Supreme Court, Ms. Rhine argued that the Texas statutory scheme violates the Equal Protection Clause by providing appointed counsel only where the state is the party seeking termination, and also that the trial court on remand had failed to specifically undergo a Lassiter analysis to see whether Ms. Rhine was entitled to appointed counsel as a matter of due process. The Texas Supreme Court denied review, and the U.S. Supreme Court recently invited the Texas Solicitor General to file a response brief.
On Oct. 11, 2009, Governor Arnold Schwarzenegger signed into law AB 590, the Sargent Shriver Civil Counsel Act, which provides funding for a six-year pilot program to test the effectiveness of significantly expanding access to counsel in certain types of civil cases. The pilot program, which will begin in July 2011, is funded by a $10 surcharge on certain post-judgment fees and is expected to raise some $10 million per year.
Pilot projects are to be partnerships between a court, a lead legal services agency, and other community legal services providers, with the use of pro bono resources specifically encouraged. A competitive grant process will select the participating counties, courts, and legal services agencies. The law funds representation in housing, domestic violence, conservatorship, guardianship, and elder abuse cases, as well as actions by parents seeking sole custody of children. Litigants with income under 200 percent of the federal poverty level (in 2009, $36,620 for a family of 3) are eligible, although representation is not guaranteed. A report evaluating the program is required by January 2016, and must cover (among other things), the allocation by case type of pilot funding, the impact of counsel on equal access to court, and data on the impact of the pilot program on families and children.
This development is getting significant attention around the country; for links to some of the media coverage see the recent developments page of www.civilrighttocounsel.org.
Alaska Supreme Court Declines to Rule on
Right to Counsel
In August the Alaska Supreme Court dismissed Office of Public Advocacy v. Alaska Court System, an appeal that had arisen out of a custody case (Gordanier v. Jonnson) involving an unrepresented mother's request for appointment of counsel when her opponent was represented by a private agency. An indigent party in Alaska has a statutory right to counsel when the opponent is represented by a public agency. Originally the Alaska Court System was directed to appoint counsel to represent the mother, with the court citing the due process and equal protection clauses of Alaska's Constitution. The trial court later changed its ruling to appoint the Alaska Office of Public Advocacy to represent the mother, citing statutory and equal protection grounds. The Office of Public Advocacy appealed.
Oral argument was heard in May, and subsequently the Supreme Court asked for briefing on mootness, expressing concern that the due process issue had not been cross appealed by the court system and that the state had not actively litigated the case. Despite briefing from OPA and amici disputing mootness, the Supreme Court dismissed the case. The positive trial court ruling therefore stands, although it lacks precedential value. For more see the June 2009 issue of Civil Right to Counsel Update.
Alaska advocates, frustrated but not disheartened, have regrouped and are seeking another matter to bring before the high court. Given the exposure that this case received, the next case likely will both place the due process issue squarely before the Court, and involve the state's active participation. In Gordanier, the state had been invited to participate at the trial court level, but declined. Although the State of Alaska represented the Office of Public Advocacy on appeal, the Supreme Court appears to be seeking the state's independent involvement. Stay tuned...
Orientation at New Law School Emphasizes Right to Counsel
The first new public California law school in over 40 years--at the University of California at Irvine--opened this fall. The university enticed noted constitutional scholar Erwin Chemerinsky to serve as founding dean, and the student orientation--reflecting Chemerinsky's conviction that the students should consider questions of access to justice--was built around the right to counsel in civil cases.
Before arriving, students were to have read the U.S. Supreme Court opinions in Gideon v. Wainwright and Lassiter v. Dept. of Social Services. Following a lecture on briefing a case, they broke into small groups and discussed the cases' rationale. Students then briefed both sides of a case involving whether alleged gang members should, at a hearing to consider a gang injunction they might later be punished for violating, have a constitutional right to a lawyer. At a luncheon presentation, retired Court of Appeal Justice (and active NCCRC participant) Earl Johnson introduced the students to the broader international perspective on the right to counsel issue, as well as the ABA resolution and the activities of NCCRC. Later the students viewed the film Gideon's Trumpet, made brief arguments on the gang injunction issue, and watched veteran appellate lawyers argue the same hypothetical case before Ninth Circuit Court of Appeal Judge Richard Paez, a former Director of Litigation at the Legal Aid Foundation of Los Angeles. The orientation concluded with an address by California Supreme Court Justice Carlos Moreno on access to justice. The students reported they found the orientation based on the right to counsel issue "engaging, relevant, and well-conceived."
NCCRC to Conduct Two Panels at
Nov. NLADA Conference
If you'll be attending the National Legal Aid and Defender Association annual conference in November, be sure to check out one or both of the sessions NCCRC will offer. The first, "Rowing Upstream: Passing Laws and Finding Resources for the Right to Counsel Despite Tough Economic Times," will explore how some states have managed to enact laws in the last decade that either expanded the right to counsel in civil cases or improved the quality of appointed counsel, even during severe economic strain. Presenters will include two NCCRC members: Laura Abel of the Brennan Center, who will also moderate, and Mimi Laver of the ABA Center on Children and the Law. The second session, "The Power of Pilots: Expanding the Right to Counsel By Example," will examine Massachusetts' and California's pilot programs: why they were pursued, what goals the designers had, and how the legislature (for Calif.) and private funders (for Mass.) were convinced to fund the pilots. Presenters for the "Pilots" session will be NCCRC members Earl Johnson, former California Court of Appeal Justice now affiliated with the Western Center on Law and Poverty, and Jayne Tyrrell of the Massachusetts IOLTA Committee; John Pollock, ABA Section on Litigation Civil Right to Counsel Fellow, will moderate. Thanks go to Sharon Rubenstein, who helped develop the two proposals. And a heads-up: civil right to counsel sessions at past NLADA conferences have been standing room only, so get there early!
Cert. Petition Filed in Texas Case
A petition for certiorari is before the U.S. Supreme Court in Rhine v. Deaton, a civil right to counsel case from Texas. In Rhine, the state sought to terminate the parental rights of Ms. Rhine, whose child was already in foster care. On the same day the state dropped its suit due to a rapidly approaching deadline, the foster parents filed a petition to terminate Ms. Rhine's parental rights. Because the Texas statute governing termination of parental rights only provides appointed counsel for indigent parents in suits brought by a "governmental entity," not a private party, Ms. Rhine was denied appointed counsel.
On appeal, the Texas Court of Appeals remanded for a ruling on whether the lower court should exercise discretion to appoint counsel for Ms. Rhine; the trial court found appointment was not necessary. In her petition for review to the Texas Supreme Court, Ms. Rhine argued that the Texas statutory scheme violates the Equal Protection Clause by providing appointed counsel only where the state is the party seeking termination, and also that the trial court on remand had failed to specifically undergo a Lassiter analysis to see whether Ms. Rhine was entitled to appointed counsel as a matter of due process. The Texas Supreme Court denied review, and the U.S. Supreme Court recently invited the Texas Solicitor General to file a response brief.
Monday, October 26, 2009
"Standing" to Forclose; Who REALLY Owns Your Home?
by Jeff Neilson
A thanks to Edward Harrison who publishes the blog “Creditwritedowns.com” for his superb explanation of foreclosure and title issues dealing with “foreclosed” properties;
Click on title above to see Harrisons article; http://seekingalpha.com/instablog/407380-jeff-nielson/32957-who-owns-foreclosed-u-s-properties-part-i-scam-in-the-making
– in his commentary “What are the legal rights of lenders and homeowners in foreclosure?” http://www.creditwritedowns.com/2009/10/what-are-the-legal-rights-of-lenders-and-homeowners-in-foreclosure.html#ixzz0V58C0GR0
It was that article which inspired me to write about some of the legal ramifications, based upon his research and analysis.
There is a lot of material in Mr. Harrison's commentary, so for those interested in this issue, I recommend going to the source to read it in full. I intend to focus on two of the extremely important issues in that piece: the question of who holds title to a securitized mortgage, and (just as important) who has “standing” to initiate and prosecute a foreclosure.
For people with no familiarity with legal jargon, who has “standing” in a legal proceeding is a question of “proximity” to the case before the court. The test for this issue generally being some direct proprietary interest.
The problem for the Wall Street oligarchs, as they began to hatch their schemes to create the U.S. housing bubble (and their own, concurrent Ponzi-scheme) centered on the importance of their new “invention”: mortgage “securitization”. It is this “securitization” which was the key to creating the U.S. housing-bubble from the supply side – rather than most asset-bubbles which are (at least initially) fueled by demand.
Through this process, banks initiate a mortgage – and then immediately sell it to a 3rd-party. If Wall Street didn't initiate the mortgage themselves, then they became the first buyer in the chain. Once holding this mortgage, these “financial wizards” sliced-and-diced these mortgages, mixed them together, and packaged and sold them in such a convoluted manner that even with the resources of the U.S. legal system at their disposal, courts have been unable to determine who holds clear, legal title to these mortgages.
However, the Wizards of Wall Street anticipated this legal dilemma. In 1995, they created a shadowy entity called Mortgage Electronic Registration Systems (MERS). Wikipedia defines MERS in this manner:
Mortgage Electronic Registration Systems is claimed to be a privately held company that controls a confidential [emphasis mine] electronic registry designed to track mortgages and the changes of servicing rights and ownership of mortgage loans in the United States.
Before I explain the role being played by MERS, and the importance of that role, let me get back to securitization. The reasons why it was absolutely essential in creating a housing-bubble, and Wall Street's subsequent scams are relatively straightforward, when laid out step-by-step.
Wall Street pretended they were “reducing risk” by securitizing these mortgages and more or less moving them off of their own balance sheets. At first, this was probably true: by taking a fixed amount of debt, and dividing it amongst more people, the risk to the system as a whole (and the individuals) is reduced.
As a simple, numerical example, if I take $100 dollars of debt and initially divide that amongst 10 people, there is a given level of risk for each of these individuals and for the system as a whole (if too many parties should default). If I then split that same $100 dollars of debt and divide it evenly among 100 people, then that reduces both the individual risk and the systemic risk – since the smaller the individual debt, the lower the probability of default. The problem was that Wall Street (and the other players in this market) never intended for the amount of debt to remain fixed.
If you then take the same numerical example, but repeat that process nine more times you now have $1000 worth of debt (ten times the original amount) – but split amongst a group which is ten times larger. Thus, not only do the risks of each party revert to the original ratios (and risks of default) but the systemic risk is ten times greater because ten times more money and ten times more players are now identically leveraged.
It was through these debt “daisy-chains” that the Wall Street oligarchs were allowed to move from the reckless-but-standard 10:1 average leverage for this sector to an insane average of 30:1.
The problem was that both ratings agencies and regulators still pretended that there had been neither an increase in individual risk nor in systemic risk. To persuade these accomplices to “look the other way” with respect to risk required adding one, more ingredient: “credit default swaps” (CDS).
These were bogus “insurance policies” created by Wall Street to “insure” its entire Ponzi-scheme. This provided the pretext for credit-rating agencies to continue rubber-stamping “AAA” on these toxic securities, and allowed regulators Ben Bernanke and Tim Geithner (head of the New York Fed, at the time) to pretend that “systemic risk” was being “controlled”.
As I say, this was clearly and obviously fake “insurance”. Because everyone was pretending that systemic risk was only a tiny fraction of what it actually was, the same regulators allowed Wall Street to only list a tiny fraction of the necessary collateral/assets to write such “insurance policies”. It was through the willful participation of the ratings agencies and the Federal Reserve that Wall Street oligarchs supposedly “insured” over $50 trillion of credit default swaps – obviously an impossibility.
We need look at only one recent example of a credit default swap which “blew up” to make it clear that most of this market was a complete sham. In “Bankster Sues Bankster – AGAIN”, I referred to a lawsuit between Citigroup and Morgan Stanley.
In this example, it was Morgan Stanley which wrote the phony “insurance”, and Citigroup which was the beneficiary. Even after Morgan Stanley liquidated the collateral which “backed” this “insurance”, it is facing a 300:1 pay-out on this “policy”. With the entire U.S. mortgage market still sitting with a 10% delinquency level in this $50 trillion insurance scheme, and with each and every pay-out at astronomical odds (due to the grossly insufficient “collateral” for this insurance), a large number of pay-outs in this market must bankrupt Wall Street – as a matter of simple arithmetic.
This is yet another reason why Wall Street is hiding millions of already-foreclosed properties on their books – and refusing to sell them. The moment that the foreclosure sale takes place, the loss on the mortgage is “crystallized” and the credit default swaps are triggered. In my commentary on Friday, I explained how/why I estimated that Wall Street is currently hiding at least 5 million foreclosed properties in this manner. Meanwhile, the next big wave of foreclosures is just to about to begin (also covered in Friday's commentary).
Returning to the housing bubble, the conspiracy by U.S. regulators and U.S. ratings agencies to allow Wall Street to leverage the entire U.S. financial system by 30:1 (from 10:1) meant roughly three times as much financing available for the same size of housing market. To accommodate the most rapid and extreme flow of “easy money” in the history of human commerce, many if not most U.S. banks simply erased their “lending standards”. Two years before the U.S. housing bubble officially burst “liars loans” had already become a common term of usage within the financial sector. Again, U.S. regulators were silent accomplices in allowing the eradication of lending standards.
Even without the use of such colourful terms to describe this fraudulently-created housing bubble, it would be obvious to any responsible regulator, rating agency, or banker that if you suddenly lend-out three times as much money to a population whose real incomes are steadily falling that their must be a huge increase in defaults. Thus, not only was this housing bubble a massive fraud on the individual level (through liars loans and other derelictions of duty), but collectively it was also a massive fraud, as it had to be obvious to the U.S. government (and specifically the relevant regulators) that there was an unsustainable “bubble” in the sector, as a whole.
This means that day after day, when Ben Bernanke got in front of the microphone to call the U.S. markets, the U.S. housing sector, and the economy as a whole a “Goldilocks economy” (where everything would keep going up in value) he could not possibly have believed his own words. They were uttered solely to enable the multi-trillion dollar Wall Street Ponzi-scheme to ensnare more victims.
It was thus apparent before the Wall Street-created U.S. housing bubble began that it would end in an unprecedented wave of foreclosures and defaults. In Part II, I will discuss Wall Street's premeditated plan for dealing with these foreclosures, through its new “front man”, MERS.
[Disclosure: I hold no position in Citigroup or Morgan Stanley]
Themes: U.S. housing sector, U.S. financial sector, U.S. corruption
Back To Jeff Nielson's Instablog HomePage »
Instablogs are blogs which are instantly set up and networked within the Seeking Alpha community. Instablog posts are not selected, edited or screened by Seeking Alpha editors, in contrast to contributors' articles.
This post has 4 comments:
TeresaE:
Comments (860)
• Instablog (3)
Follow
Great thoughts Jeff.
Truthfully, and no one in America understands this, the "homeowners" are not the people paying (or defaulting) on the mortgage. The owners are the banks.
Once you realize this little nugget of truth and then apply the truth to our situation, it should scare your pants off.
EVERY program out of WDC that is "helping homeowners" is not helping citizens, these programs are helping one thing-and one thing only - the banks.
The credits, modifications and stays only help the true owners - the banks.
Yet somehow we citizens believe that Congress is working for us.
bwaaahaaahaaa.
Can't wait to read the rest. Thanks
What are the legal rights of lenders and homeowners in foreclosure?
Posted by Edward Harrison on 23 October 2009 at 11:10 am
After I published the recent story on the case against servicing agent MERS in the Kansas Supreme court, I noticed a lot of chatter about some mortgage servicing line items in Wells Fargo’s earnings report. So I wanted to quote a few blurbs from the Kansas Appeals Court and Supreme Court decisions as background for another post on future mortgage service revenue streams in banking.
The Appeals Court case had a narrow focus as to whether MERS was a ‘necessary party’ in this particular foreclosure case. The finding was that MERS was not. The Kansas Supreme court agreed that MERS was not “contingently necessary.” They went further in concluding that the fact that MERS neither possessed the promissory note or had authority to assign it may mean it cannot file suit.
However, because this is not a comprehensive judgment as to MERS’ role as nominee, clarification is needed. Given the number of foreclosures in the US, I expect this case is going to the Supreme Court.
Here are the facts.
Landmark National Bank v. Boyd A. Kessler summary
My summary of the case is as follows:
A homeowner based in Kansas came into economic difficulty, causing him to fall behind on his mortgage and file for bankruptcy on 13 April 2006. While he could have exempted his house in discharging his personal liabilities in bankruptcy, the homeowner opted instead to surrender the house.
Three months after he filed, on 27 Jul 2006, the bank with his primary mortgage decided to foreclose. It did not inform MERS (the central repository which tracks changes in mortgage ownership and servicing rights). Nor did it inform the bank holding the secondary mortgage.
On 6 September 2006, the district court then entered a default judgment and ordered a sale on 29 September 2006. Notice of the sale went out into newspapers and a couple picked up this foreclosed property on the cheap on 14 November 2006. So far, so good.
Except that very day, a full seven after the bankruptcy filing, the secondary bank filed a petition to set aside the district court opinion, arguing that MERS was a “contingently necessary party.” It wanted the money it was owed. And on 16 January 2007, MERS joined the bank in filing. By 1 February 2007, the district court denied the petition to vacate the original default judgment.
The case was appealed to both the Kansas Appeals and Kansas Supreme Courts
Here are some of the issues:
Is MERS as a mortgage servicing registry a “contingently necessary party” in this particular or any bankruptcy involving a property in its database?
In what instances can MERS act as a nominee for the mortgagees in court to enforce a foreclosure?
If MERS can act as a nominee, does MERS have to produce the original mortgage promissory note in order to foreclose?
If MERS can act as a nominee, can a homeowner sue MERS or the mortgage servicing agent for the original lenders’ alleged predatory lending?
Is the mortgage servicing agent a nominee or agent of the mortgagee or even a principal? If so, what are the obligations of the servicing agent to help affect a mortgage loan modification?
All of these questions arise because of the convoluted process we have for mortgages as a result of the mortgage-backed security market. These questions have only become acute because the rise in foreclosures has made them a serious issue.
Excerpts from the Kansas Appeals Court decision
A party is not contingently necessary in a mortgage-foreclosure lawsuit when that party is called the mortgagee in a mortgage but is not the lender, has no right to the repayment of the underlying debt, and has no role in handling mortgage payments.
In a mortgage-foreclosure lawsuit, a district court does not abuse its discretion when it denies a motion to intervene that is filed by an unrecorded mortgage holder or its agent after the mortgage has been foreclosed and the property has been sold
What is MERS’s interest? MERS claims that it holds the title to the second mortgage, not the real estate. So it does, but only as a nominee. In terms of the roles that we’ve discussed in the mortgage business, MERS holds the mortgage but without rights to the debt. The district court found that MERS was merely an agent for the principal player, Millennia. While MERS objects to its characterization as an agent, it’s a fair one.
MERS had no right to the underlying debt repayment secured by the mortgage; MERS did not even act as the servicing agent to receive the payments and remit them to the lender. MERS’s right to act to enforce the mortgage was strictly limited: if "necessary to comply with law or custom," MERS could foreclose the mortgage or enter a release of the mortgage. MERS certainly could not act at odds to its principal, the lender. Its role fits the classic definition of an agent: one "’authorized by another to act for him, or intrusted with another’s business.’" In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 534, 920 P.2d 947 (1996) (quoting Black’s Law Dictionary 85 [4th ed. 1968]).
Kansas law does require through K.S.A. 58-2309a that a mortgage holder promptly release a mortgage when the debt has been paid; MERS could be required as a matter of law to file a mortgage release after a borrower proved that the debt had been paid. Other than that, however, it is hard to conceive of another act that MERS—instead of the lender—would be required to take by law or custom.
We do not attempt in this opinion to comprehensively determine all of the rights or duties of MERS as a nominee mortgagee. As the mortgage suggests may be done when "necessary to comply with law or custom," courts elsewhere have found that MERS may in some cases bring foreclosure suits in its own name.
Excerpts from the Kansas Supreme Court decision
K.S.A. 60-219(a) defines which parties are to be joined in an action as necessary for just adjudication:
"A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is "[o]ne to whom property is mortgaged: the mortgage creditor, or lender." Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting "solely" as the nominee of the lender.
The Missouri court found that, because MERS was not the original holder of the promissory note and because the record contained no evidence that the original holder of the note authorized MERS to transfer the note, the language of the assignment purporting to transfer the promissory note was ineffective. "MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force."
"MERS does not take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through membership fees charged to its members. MERS does not receive compensation from consumers." 270 Neb. at 534.
My reading of these statements is that MERS is a nominee and not much more. This should limit its ability to act on behalf of a mortgagee in foreclosure. How much and in what ways due process is at stake has yet to be decided in the courts, the reason I expect this case to receive a look from the Supreme Court.
Sources
Landmark National Bank v. Boyd A. Kessler, Kan 2009, No. 98,489 – Kansas Courts Documents
See my post “Why mortgages aren’t modified and what a ruling stopping foreclosures means” for the Appeals Court decision; http://www.creditwritedowns.com/2009/10/why-mortgages-arent-modified-and-what-a-ruling-stopping-foreclosures-means.html
ShareThis
Posted by Mz.Many Names at 5:55 PM 0 comments
A thanks to Edward Harrison who publishes the blog “Creditwritedowns.com” for his superb explanation of foreclosure and title issues dealing with “foreclosed” properties;
Click on title above to see Harrisons article; http://seekingalpha.com/instablog/407380-jeff-nielson/32957-who-owns-foreclosed-u-s-properties-part-i-scam-in-the-making
– in his commentary “What are the legal rights of lenders and homeowners in foreclosure?” http://www.creditwritedowns.com/2009/10/what-are-the-legal-rights-of-lenders-and-homeowners-in-foreclosure.html#ixzz0V58C0GR0
It was that article which inspired me to write about some of the legal ramifications, based upon his research and analysis.
There is a lot of material in Mr. Harrison's commentary, so for those interested in this issue, I recommend going to the source to read it in full. I intend to focus on two of the extremely important issues in that piece: the question of who holds title to a securitized mortgage, and (just as important) who has “standing” to initiate and prosecute a foreclosure.
For people with no familiarity with legal jargon, who has “standing” in a legal proceeding is a question of “proximity” to the case before the court. The test for this issue generally being some direct proprietary interest.
The problem for the Wall Street oligarchs, as they began to hatch their schemes to create the U.S. housing bubble (and their own, concurrent Ponzi-scheme) centered on the importance of their new “invention”: mortgage “securitization”. It is this “securitization” which was the key to creating the U.S. housing-bubble from the supply side – rather than most asset-bubbles which are (at least initially) fueled by demand.
Through this process, banks initiate a mortgage – and then immediately sell it to a 3rd-party. If Wall Street didn't initiate the mortgage themselves, then they became the first buyer in the chain. Once holding this mortgage, these “financial wizards” sliced-and-diced these mortgages, mixed them together, and packaged and sold them in such a convoluted manner that even with the resources of the U.S. legal system at their disposal, courts have been unable to determine who holds clear, legal title to these mortgages.
However, the Wizards of Wall Street anticipated this legal dilemma. In 1995, they created a shadowy entity called Mortgage Electronic Registration Systems (MERS). Wikipedia defines MERS in this manner:
Mortgage Electronic Registration Systems is claimed to be a privately held company that controls a confidential [emphasis mine] electronic registry designed to track mortgages and the changes of servicing rights and ownership of mortgage loans in the United States.
Before I explain the role being played by MERS, and the importance of that role, let me get back to securitization. The reasons why it was absolutely essential in creating a housing-bubble, and Wall Street's subsequent scams are relatively straightforward, when laid out step-by-step.
Wall Street pretended they were “reducing risk” by securitizing these mortgages and more or less moving them off of their own balance sheets. At first, this was probably true: by taking a fixed amount of debt, and dividing it amongst more people, the risk to the system as a whole (and the individuals) is reduced.
As a simple, numerical example, if I take $100 dollars of debt and initially divide that amongst 10 people, there is a given level of risk for each of these individuals and for the system as a whole (if too many parties should default). If I then split that same $100 dollars of debt and divide it evenly among 100 people, then that reduces both the individual risk and the systemic risk – since the smaller the individual debt, the lower the probability of default. The problem was that Wall Street (and the other players in this market) never intended for the amount of debt to remain fixed.
If you then take the same numerical example, but repeat that process nine more times you now have $1000 worth of debt (ten times the original amount) – but split amongst a group which is ten times larger. Thus, not only do the risks of each party revert to the original ratios (and risks of default) but the systemic risk is ten times greater because ten times more money and ten times more players are now identically leveraged.
It was through these debt “daisy-chains” that the Wall Street oligarchs were allowed to move from the reckless-but-standard 10:1 average leverage for this sector to an insane average of 30:1.
The problem was that both ratings agencies and regulators still pretended that there had been neither an increase in individual risk nor in systemic risk. To persuade these accomplices to “look the other way” with respect to risk required adding one, more ingredient: “credit default swaps” (CDS).
These were bogus “insurance policies” created by Wall Street to “insure” its entire Ponzi-scheme. This provided the pretext for credit-rating agencies to continue rubber-stamping “AAA” on these toxic securities, and allowed regulators Ben Bernanke and Tim Geithner (head of the New York Fed, at the time) to pretend that “systemic risk” was being “controlled”.
As I say, this was clearly and obviously fake “insurance”. Because everyone was pretending that systemic risk was only a tiny fraction of what it actually was, the same regulators allowed Wall Street to only list a tiny fraction of the necessary collateral/assets to write such “insurance policies”. It was through the willful participation of the ratings agencies and the Federal Reserve that Wall Street oligarchs supposedly “insured” over $50 trillion of credit default swaps – obviously an impossibility.
We need look at only one recent example of a credit default swap which “blew up” to make it clear that most of this market was a complete sham. In “Bankster Sues Bankster – AGAIN”, I referred to a lawsuit between Citigroup and Morgan Stanley.
In this example, it was Morgan Stanley which wrote the phony “insurance”, and Citigroup which was the beneficiary. Even after Morgan Stanley liquidated the collateral which “backed” this “insurance”, it is facing a 300:1 pay-out on this “policy”. With the entire U.S. mortgage market still sitting with a 10% delinquency level in this $50 trillion insurance scheme, and with each and every pay-out at astronomical odds (due to the grossly insufficient “collateral” for this insurance), a large number of pay-outs in this market must bankrupt Wall Street – as a matter of simple arithmetic.
This is yet another reason why Wall Street is hiding millions of already-foreclosed properties on their books – and refusing to sell them. The moment that the foreclosure sale takes place, the loss on the mortgage is “crystallized” and the credit default swaps are triggered. In my commentary on Friday, I explained how/why I estimated that Wall Street is currently hiding at least 5 million foreclosed properties in this manner. Meanwhile, the next big wave of foreclosures is just to about to begin (also covered in Friday's commentary).
Returning to the housing bubble, the conspiracy by U.S. regulators and U.S. ratings agencies to allow Wall Street to leverage the entire U.S. financial system by 30:1 (from 10:1) meant roughly three times as much financing available for the same size of housing market. To accommodate the most rapid and extreme flow of “easy money” in the history of human commerce, many if not most U.S. banks simply erased their “lending standards”. Two years before the U.S. housing bubble officially burst “liars loans” had already become a common term of usage within the financial sector. Again, U.S. regulators were silent accomplices in allowing the eradication of lending standards.
Even without the use of such colourful terms to describe this fraudulently-created housing bubble, it would be obvious to any responsible regulator, rating agency, or banker that if you suddenly lend-out three times as much money to a population whose real incomes are steadily falling that their must be a huge increase in defaults. Thus, not only was this housing bubble a massive fraud on the individual level (through liars loans and other derelictions of duty), but collectively it was also a massive fraud, as it had to be obvious to the U.S. government (and specifically the relevant regulators) that there was an unsustainable “bubble” in the sector, as a whole.
This means that day after day, when Ben Bernanke got in front of the microphone to call the U.S. markets, the U.S. housing sector, and the economy as a whole a “Goldilocks economy” (where everything would keep going up in value) he could not possibly have believed his own words. They were uttered solely to enable the multi-trillion dollar Wall Street Ponzi-scheme to ensnare more victims.
It was thus apparent before the Wall Street-created U.S. housing bubble began that it would end in an unprecedented wave of foreclosures and defaults. In Part II, I will discuss Wall Street's premeditated plan for dealing with these foreclosures, through its new “front man”, MERS.
[Disclosure: I hold no position in Citigroup or Morgan Stanley]
Themes: U.S. housing sector, U.S. financial sector, U.S. corruption
Back To Jeff Nielson's Instablog HomePage »
Instablogs are blogs which are instantly set up and networked within the Seeking Alpha community. Instablog posts are not selected, edited or screened by Seeking Alpha editors, in contrast to contributors' articles.
This post has 4 comments:
TeresaE:
Comments (860)
• Instablog (3)
Follow
Great thoughts Jeff.
Truthfully, and no one in America understands this, the "homeowners" are not the people paying (or defaulting) on the mortgage. The owners are the banks.
Once you realize this little nugget of truth and then apply the truth to our situation, it should scare your pants off.
EVERY program out of WDC that is "helping homeowners" is not helping citizens, these programs are helping one thing-and one thing only - the banks.
The credits, modifications and stays only help the true owners - the banks.
Yet somehow we citizens believe that Congress is working for us.
bwaaahaaahaaa.
Can't wait to read the rest. Thanks
What are the legal rights of lenders and homeowners in foreclosure?
Posted by Edward Harrison on 23 October 2009 at 11:10 am
After I published the recent story on the case against servicing agent MERS in the Kansas Supreme court, I noticed a lot of chatter about some mortgage servicing line items in Wells Fargo’s earnings report. So I wanted to quote a few blurbs from the Kansas Appeals Court and Supreme Court decisions as background for another post on future mortgage service revenue streams in banking.
The Appeals Court case had a narrow focus as to whether MERS was a ‘necessary party’ in this particular foreclosure case. The finding was that MERS was not. The Kansas Supreme court agreed that MERS was not “contingently necessary.” They went further in concluding that the fact that MERS neither possessed the promissory note or had authority to assign it may mean it cannot file suit.
However, because this is not a comprehensive judgment as to MERS’ role as nominee, clarification is needed. Given the number of foreclosures in the US, I expect this case is going to the Supreme Court.
Here are the facts.
Landmark National Bank v. Boyd A. Kessler summary
My summary of the case is as follows:
A homeowner based in Kansas came into economic difficulty, causing him to fall behind on his mortgage and file for bankruptcy on 13 April 2006. While he could have exempted his house in discharging his personal liabilities in bankruptcy, the homeowner opted instead to surrender the house.
Three months after he filed, on 27 Jul 2006, the bank with his primary mortgage decided to foreclose. It did not inform MERS (the central repository which tracks changes in mortgage ownership and servicing rights). Nor did it inform the bank holding the secondary mortgage.
On 6 September 2006, the district court then entered a default judgment and ordered a sale on 29 September 2006. Notice of the sale went out into newspapers and a couple picked up this foreclosed property on the cheap on 14 November 2006. So far, so good.
Except that very day, a full seven after the bankruptcy filing, the secondary bank filed a petition to set aside the district court opinion, arguing that MERS was a “contingently necessary party.” It wanted the money it was owed. And on 16 January 2007, MERS joined the bank in filing. By 1 February 2007, the district court denied the petition to vacate the original default judgment.
The case was appealed to both the Kansas Appeals and Kansas Supreme Courts
Here are some of the issues:
Is MERS as a mortgage servicing registry a “contingently necessary party” in this particular or any bankruptcy involving a property in its database?
In what instances can MERS act as a nominee for the mortgagees in court to enforce a foreclosure?
If MERS can act as a nominee, does MERS have to produce the original mortgage promissory note in order to foreclose?
If MERS can act as a nominee, can a homeowner sue MERS or the mortgage servicing agent for the original lenders’ alleged predatory lending?
Is the mortgage servicing agent a nominee or agent of the mortgagee or even a principal? If so, what are the obligations of the servicing agent to help affect a mortgage loan modification?
All of these questions arise because of the convoluted process we have for mortgages as a result of the mortgage-backed security market. These questions have only become acute because the rise in foreclosures has made them a serious issue.
Excerpts from the Kansas Appeals Court decision
A party is not contingently necessary in a mortgage-foreclosure lawsuit when that party is called the mortgagee in a mortgage but is not the lender, has no right to the repayment of the underlying debt, and has no role in handling mortgage payments.
In a mortgage-foreclosure lawsuit, a district court does not abuse its discretion when it denies a motion to intervene that is filed by an unrecorded mortgage holder or its agent after the mortgage has been foreclosed and the property has been sold
What is MERS’s interest? MERS claims that it holds the title to the second mortgage, not the real estate. So it does, but only as a nominee. In terms of the roles that we’ve discussed in the mortgage business, MERS holds the mortgage but without rights to the debt. The district court found that MERS was merely an agent for the principal player, Millennia. While MERS objects to its characterization as an agent, it’s a fair one.
MERS had no right to the underlying debt repayment secured by the mortgage; MERS did not even act as the servicing agent to receive the payments and remit them to the lender. MERS’s right to act to enforce the mortgage was strictly limited: if "necessary to comply with law or custom," MERS could foreclose the mortgage or enter a release of the mortgage. MERS certainly could not act at odds to its principal, the lender. Its role fits the classic definition of an agent: one "’authorized by another to act for him, or intrusted with another’s business.’" In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 534, 920 P.2d 947 (1996) (quoting Black’s Law Dictionary 85 [4th ed. 1968]).
Kansas law does require through K.S.A. 58-2309a that a mortgage holder promptly release a mortgage when the debt has been paid; MERS could be required as a matter of law to file a mortgage release after a borrower proved that the debt had been paid. Other than that, however, it is hard to conceive of another act that MERS—instead of the lender—would be required to take by law or custom.
We do not attempt in this opinion to comprehensively determine all of the rights or duties of MERS as a nominee mortgagee. As the mortgage suggests may be done when "necessary to comply with law or custom," courts elsewhere have found that MERS may in some cases bring foreclosure suits in its own name.
Excerpts from the Kansas Supreme Court decision
K.S.A. 60-219(a) defines which parties are to be joined in an action as necessary for just adjudication:
"A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is "[o]ne to whom property is mortgaged: the mortgage creditor, or lender." Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting "solely" as the nominee of the lender.
The Missouri court found that, because MERS was not the original holder of the promissory note and because the record contained no evidence that the original holder of the note authorized MERS to transfer the note, the language of the assignment purporting to transfer the promissory note was ineffective. "MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force."
"MERS does not take applications, underwrite loans, make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the ownership of the lien and is paid for its services through membership fees charged to its members. MERS does not receive compensation from consumers." 270 Neb. at 534.
My reading of these statements is that MERS is a nominee and not much more. This should limit its ability to act on behalf of a mortgagee in foreclosure. How much and in what ways due process is at stake has yet to be decided in the courts, the reason I expect this case to receive a look from the Supreme Court.
Sources
Landmark National Bank v. Boyd A. Kessler, Kan 2009, No. 98,489 – Kansas Courts Documents
See my post “Why mortgages aren’t modified and what a ruling stopping foreclosures means” for the Appeals Court decision; http://www.creditwritedowns.com/2009/10/why-mortgages-arent-modified-and-what-a-ruling-stopping-foreclosures-means.html
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Posted by Mz.Many Names at 5:55 PM 0 comments
Saturday, October 24, 2009
Following Elys Wild Horse Case
Sometime back in late July 2009, I received a call from a distraught wild-horse and burro advocate out in Nevada. "Do you know what is going on with Nevadas wild horses (and burros?) the voice asked." Well I had to admit that I hadent been following the wild horse and burro issue as closely as I should have been ,..but I did know that what was going on with our National Wild Horse situation was not good. I was not aware of just how bad things were, particularly with our Nevada wild horse (and burro) herds, until this caller put me wise. It seems the government (the Bureau of Land Management or BLM) was hell-bent to eradicate all wild horses off of the public lands in that state. Not only were they culling "excess" horses from several herds, leaving them in numbers so small as to be "unviable,"..but were eliminating or "zeroing out" whole herds entirely,...and taking away their historic rangelands that were statutorily given to them by the provisions of the 1971 Wild Free-roaming Horses and Burros Act. The objections of Nevada residents and wild horse advocates went unheeded as the BLM set out upon their mission of destroying our wild horse and burro herds in that state. The caller was frantic with worry over the situation so hense, the distress call to me was made that day in late July, and I have been busy with it non-stop and hot on this issue ever since, and the focus of my endeavors is the Ely Nevada District of the BLM, who is the one busy doing all the "zeroing out" of the herds.
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During the course of my research, I learned about such things as The National Environmental Protection Act, Environmental Accessments (EAs) and Environmental Impact Statements (EIS) and Findings of No Significant Impact (FONSI) and The Federal Lands Policy & management Act (FLPMA) and became familiar with such terminologies as "Biodiversity," "Sustainability" and "Multiple Use," etc.
I studied related case law and strangley enough, smak dab in the middle of my research, along about August 5, 2009, a decision on a case "Colorado Wild Horse & Burro Coalition v. BLM" came down from the DC Court indicating that the BLM COULD NOT remove any horses from their rangelands UNLESS they deemed them "excess" before-hand. This is precisely what the Ely District BLM was NOT doing and about which we were about to challange.
The plan was for me to work up a rough draft of a complaint sufficient enough to lay out all of the facts and circumstances of our case, setting forth the issues and arguments and of course, citing the new ruling out of Colorado that would help our own case, or so we thought. The idea was to have something to present to lawyers in hopes of compelling them to take over the case. Time was of the essence here, as the idea was to have the request for an Injunction heard BEFORE the gathers schedualed to commence on August 18, 2009. While we were unable to obtain representation at this time, we did find a huge pocket of support from law-folk, wild horse advocates and laymen alike, who all helped in whatever capacity they could. However, we were unable for a variety of reasons to compel any lawyer or firm to take the lead and litigate the case for us. It looked like the fastest way to get it into the Courts was for me to do a "Poor Perons" Pro Se thing, and that is what I reluctantly did. There was some question about my "standing" to sue. Long Story short cause there was alot transpired before hand,...this is the Complaint I eventually submitted to the DC Court on or about Sept 28, 2009;
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UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Christine A. Jubic,
Plaintiff,
COMPLAINT AND v. PRAYER FOR RELIEF
THE UNITED STATES OF AMERICA, Case# _____
Jury Trial Demanded
Ken Salazar, Secretary of the U.S. Dept. of the Interior,
Mr. Robert Abbey, National Director, U.S. Bureau of Land Management,
Rosemary Thomas, District Manager, Ely Office of the U.S. Bureau of Land Management,
Defendants.
NATURE OF ACTION
This Complaint is an action for declaratory judgment seeking an emergency preliminary injunction and temporary restraining order, as well as seeking redress for violation of several administrative rules, federal statutes and of U.S. Constitutional provisions.
2. The complaint is a challenge to the decision and actions of the BLM in their plan to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (Lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands, deeming it as no longer suitable for the grazing of wild horses while still allowing for the grazing of privately owned cattle, big game and Off-Road Vehicle (ORV) use. These wild free-roaming horse herds, or rather, what is left of them, currently and lawfully occupy public lands that were statutorily designated "principally” for their use under the Wild Free-Roaming Horses and Burros Act (“WFHBA” or “Act”), 16 U.S.C. § 1331, et seq.
JURISDICTION AND VENUE
3. This case concerns a federal question and, therefore, jurisdiction is proper under 28 U.S.C. § 1331. Venue is also proper under 28 U.S.C. § 1391(e). This Court may review defendants’ actions and order appropriate relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq.
PLAINTIFF
4. Plaintiff Jubic submits that her love affair with the Ely District Herds began in the early 1980’s when she was a resident of the state of Nevada, residing at various times in Nye, Lincoln and Clark Counties. She became involved in the movement to preserve Nevada’s wild horses when articles began to appear in the Nevada newspapers about the mystery of the Leo Heil will monies. Mr. Heil was a California resident who so loved Nevada’s wild horses that he left a small fortune to them in his will designated to the State of Nevada for their preservation in the wild. However, the use of these funds has been very questionable and there is little evidence that Nevada’s wild horses have benefited in any way from the monies bequeathed to them in the Leo Heil Will. Plaintiff Jubic was so affected and moved by the story of Mr. Heil's efforts to protect Nevada’s wild horses, that she wrote an article about this that appeared in the Las Vegas Review Journal. Ever since that time, Plaintiff has had a close affinity with Nevada’s wild horse herds, particularly for the BLM Ely District herds, as these are the ones she lived closest to and personally observed. Plaintiff Jubic enjoyed watching these particular herds not only as a resident Nevadan but, later, as an out-of-state visitor also. Plaintiff Jubic currently resides outside of the State of Nevada but, because of her love for the Ely Herds, she is planning on re-visiting them sometime again in the future "before she dies." Plaintiff has passionately committed herself to the preservation of the Ely District Herds and has long ago made a promise to herself to do so, not only for her love of these wild horse herds, but for the memory of and in fulfillment of the last wishes of Mr. Leo Heil, for their wishes are one and the same: the proper management and preservation of Nevada’s Wild Horse Herds in the wild. In efforts to further her goal of helping wild horses, several years ago, plaintiff created a website called “Save Our Wild Horses” and can be viewed at http://www.freewebs.com/saveourwildhorses. Plaintiff Jubics “Friends of Equines” website can be viewed at http://www.freewebs.com/friendsofequines.
DEFENDANTS
5. The United States of America (USA) is the country of origin of the decision and actions as occurred or occurring and complained of in this case, and is responsible for the creation of administrative bodies such as the defendants herein represent, and is also responsible for the full and fair administration of its laws within its jurisdictional boundaries.
6. The United States Department of the Interior (DOI), is a branch of the United States Government charged with the responsibility of overseeing the operations on the Bureau of Land Management (BLM).
7. Ken Salazar is named as a Defendant herein, as Secretary of the Department of the Interior.
8. The United States Bureau of Land Management (BLM), is a branch of the United States Government charged with the protection and management of America’s wild free-roaming horses and burros .
9. Mr. Robert Abbey, is named as a defendant herein as Director of the Bureau of Land Management.
10. The United States Bureau of Land Management, Ely District Office, is a branch of the United States Government charged with the protection and management of America’s wild free-roaming equines. It is also the Distinct Office in charge of the removals challenged in this complaint.
11. Rosemary Thomas is named as a defendant herein as Manager of the Ely District Office of the BLM in the state of Nevada.
HISTORICAL BACKGROUND
12. Following the passage of the WFHBA, the BLM delineated the Seaman, and White River Herd Areas (HAs,) as lands upon which wild horses roamed in 1971. The total acreage of these two HAs combined is approximately 475,100 acres, and was designated by the BLM as “principally“ for wild horse use. Pursuant to the 1986 Egan RMP, 100% of these lands were designated as wild horse herd management areas (HMAs) suitable for long-term management of wild horses. The 1986 Egan RMP also established the “Appropriate Management Level” (“AML” or the number of horses that the HMAs could “sustainably contain”. The AMLs were set at 159 wild horses for the Seaman and 90 for the White River. The HMAs and AMLs were set for the Caliente Complex of Herds at about the same time. Altogether, the Seaman, White River and Caliente Complex make up eleven (11) separate and distinct herds.
13. In 2008, the Approved Ely District Resource Management Plan (RMP) reset the AMLs for all eleven (11) of these herds at “0”, and dropped the HMA status of the 1.4 million acres, and returned it to HA status as suitable for cattle, sheep and wildlife grazing only. The Ely RMP suggested removal of 100% of the wild horse herds in these areas, citing at pg. 2 para. 1.1, in relevant part,....“Remove wild horses and drop herd management area status...........“Removal of all wild horses from the Seaman and White River HAs is needed at this time in order to implement this management direction and to prevent further damage to the range resulting from the current overpopulation.” (See Ely Development Plans RMP, Ex. C).
14. It is apparent from this bare-bones allegation in Ely RMP that the planners, as well as the BLM, would have us believe that the ranges are being damaged due only to an overpopulation of wild horses. No mention is made in the RMP or any other land-use document prepared for this action, of the various other uses on this land that contribute to rangeland degradation, such as livestock & wildlife grazing which vastly outnumber the wild horses. Nor was any mention made of the off-road vehicle use permitted also upon these lands, or of the plans for expansion of same.
15. More specific but also generalized allegations as to the reasons for the action were given in the Seaman / White River Environmental Assessment and are listed as, “insufficient forage and limited water sources.“ (S/WR EA, pg.4,5, para.1.3, Ex A.) Also noted almost as an aside but perhaps is a more accurate and honest telling of the real reason behind these whole herd removals is the planner’s own admissions that the action is "also needed “ to "make significant progress towards fulfillment of “The Mojave / Southern Great Basin Resource Management Plan, " (M/SGB RMP). The same was stated in the Caliente Complex EA as reason for the zeroing out of the nine (9) Caliente herds (See Caliente EA, pg.1.0, para.1.2, Ex. B).
The Mojave / Southern Great Basin Resource Management Plan (M/SGB RMP)
16. The RMP, as initiated under the provisions of the Southern Nevada Land Management Act and the Eastern Nevada Landscape Restoration Project, is supported by a group of special interest groups organizing themselves under the name of The Eastern Nevada Landscape Restoration Coalition. This coalition consist of several organizations that have traditionally been hostile towards the wild horses as they compete for forage with cattle, sheep, elk, mule deer and big horn sheep. The wild horses also stand in the way their expansion and development plans. The organizations included in the coalition are:
Bighorns Unlimited, Bureau of Land Management, Ducks Unlimited-Nevada, Fraternity of the Desert Bighorn, Friends of Nevada Wilderness, Great Basin National Park, Mule Deer Foundation, Natural Resource Conservation Service, Nevada Cattlemen's Association, Nevada Farm Bureau Federation, Nevada Wool Growers Association, Red Rock Audubon Society, Rocky Mountain Elk Foundation and The Nature Conservancy-Nevada.
17. The overall plan, as set forth in the M/SGB RMP and other various land use documents, is for developments to take place on wild horse rangelands once they are removed. There are plans for expansion of wilderness areas as well as expanded trails for ORVs and other kinds of developments including solar and wind farms and water resource enhancement projects. Lands that are not planned for development will be offered for sale to the general public. (See Ely Development Plans ROD, Ex C).
18. The Plaintiff admits that economic interests are a real and valid concern when developing land management plans, but submits that the law requires that land-management plans and decisions should not be based or decided upon economic factors alone. Plaintiff submits that the relevant law requires a balancing of considerations.
19. The comment period for the Seaman and White River Removals ended on July 6, 2009, and the comment period for the Caliente removals ended on July 15, 2009. Plaintiff vigorously opposed these plans and duly made objections and/or comments as allowed by BLMs administrative laws -- all to no avail.
20. On August 14th, 2009, the final decision and order regarding the Seaman and White River Gathers was issued authorizing the zeroing-out of these two herds and the "de-classification" of their rangelands as no longer suitable for wild horse herd management areas (HMAs). The Order was issued under "full force and effect."
ADMINISTRATIVE APPEAL IS FUTILE
21. On or about August 17th, 2009, Plaintiff did file an administrative appeal and also filed at the same time a petition for a stay of action pending the outcome of her appeal (see "Appeal" attached as Ex.D), but due to the "full force and effect" clause governing administrative appeals, plaintiffs appeal have no effect to prevent these removals. Plaintiff submits that, even in the event of a successful appeal, it would be futile to stop the round-ups. By the time the appeal would be decided, the “whole herd” removals plaintiff seeks to prevent would have already taken place.
22. The effectiveness of a BLM decision to round up and remove wild horses during the pendency of an appeal to the Board of Land Appeals is controlled by 43 C.F.R. §4770.-3(c). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse removal decision into full force and effect, and it "take[s] effect on the date specified, regardless of an appeal."
23. Pursuant to this law, final decisions of the BLM are carried out regardless of any appeal that may be pending. Although this same rule gives the administration broad discretionary power to grant a stay of action pending the outcome of an administrative appeal, to the best of the plaintiff’s own knowledge and belief, such a stay is rarely, if ever, granted in the matter of wild horse removals.
24. The round-ups of the Seaman and White River Herds did commence on Aug. 19, 2009, as scheduled.
25. On September 16, 2009, Plaintiff did receive a decision on her administrative appeal & petition for a stay. The appeal was denied on the grounds that land-management (RMPs) decisions are not reviewable by the Board of Land Appeals, and the Petition for a Stay of Action was denied on the ground of "mootness" in view of the fact that the (Seaman and White River) gathers were commenced and nearly complete. (See Appeal & Decision, Ex.D(a)). Plaintiff submits that the matter of the petition for a stay is not moot as long as a single wild horse or burro remains in any of these endangered herd management areas. Although the gathers for the Seaman and White River Herds has commenced already, plaintiff submits that all horses are rarely, if ever, gathered in the course of one, two, or even three or more round-ups. There are almost always stragglers who evade capture and will have to wait for the next roundup, whenever that will be.
26. Although the final decision for the second-half of the proposed gathers (the Caliente Herds) has not yet been rendered as of the date of the filing of this complaint, the final decision is due to "come down" at any time, and, as indicated in the Caliente EA, (Ex.B). The Caliente gathers are scheduled to commence on Oct. 1st. Plaintiff plans to submit another appeal to the IBLA in the Caliente matter, if necessary, but believes the administrative appeal would be futile even if won, for the same reasons as indicated above.
27. Plaintiff prays the court will find an administrative appeal futile in this case also.
28. The BLM’s interpretation of its authority to zero-out whole herds and take away their historic lands will result in the extermination of all wild horse herds in the Seaman, White River and Caliente Complex and will cause irreparable harm to the plaintiff if immediate action is not taken to prevent it. Because BLM’s challenged actions are contrary to law and will result in irreparable injury to the plaintiff, plaintiff is seeking declaratory and emergency injunctive relief as well as a Temporary Restraining Order.
29. Defendant BLM’s actions, as set forth in greater detail herein, inflict current harm to plaintiff’s procedural and substantive interests in the aesthetic enjoyment and protection of individual wild horses as well as the composite wild horse populations of the Ely District.
STATUTORY AND REGULATORY BACKGROUND GIVING RISE TO
PLAINTIFF’S CAUSES OF ACTION
I. The Wild Free-Roaming Horses and Burros Act
30. Through the WFHBA, Congress found and declared that, “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Upon finding this, Congress stated that its policy was that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of public lands.” 16 U.S.C. § 1331.
31. The BLM and the Forest Service (USFS) have exclusive authority under the WFHBA for the protection of wild horses and burros on the public lands administered by their offices. 16 U.S.C. § 1331(a). The WFHBA requires that BLM’s and USFS’s management activities be at “the minimal feasible level.” Id. According to BLM’s own regulations, BLM must protect wild horses and burros from unauthorized capture, branding, harassment or death and provide these animals with humane care and treatment. 43 C.F.R. § 4700.
32. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands.” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” and are
defined as “the geographic area identified as having been used by a herd as its habitat in 1971.” 43 C.F.R. § 4700.0-5(d).
33. Under the WFHBA, “range” means the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands,” 16 U.S.C. § 1332 (c).
34. The Act requires the Secretary to “protect and manage wild free-roaming horses and burros as components of the public lands . . . . The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. §
1333 (b)(1). The Act also provides that, “Where the Secretary determines . . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).
35. In the Senate Committee report accompanying the bill that became law the Senate noted, “The committee wishes to emphasize that the management of the wild free-roaming horses and burros be kept to a minimum both from the aspect of reducing costs of such a program as well as to deter the possibility of ‘zoo like’ developments.” S. Rep. 92-242, 92nd Cong., 1st Sess. 1971 at 2152. “An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve . . . leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man.” Id.
II. National Environmental Policy Act
36. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., any major federal actions that significantly affects the quality of the human environment requires the preparation of an EIS. NEPA §102(2) (C). The language
and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by consideration of a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.
37. Agencies may decide instead of preparing an EIS, to prepare an EA first. An EA serves three purposes: it assists in agency’s decision-making on whether to prepare an EIS or Finding of No Significant Impact (“FONSI”); it independently ensures compliance with NEPA even when no EIS is required; and it facilitates the preparation of an EIS if one is required. 40 C.F.R. § 1508.9(a) (2007).
38. In an EA, NEPA requires BLM to analyze alternatives which involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii).
39. Although an EA is a “concise public document,” it must include a discussion of the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives and a listing of the persons and agencies consulted. 40 C.F.R. §§ 1508.9(a), 1508.9(b).
40. An EA’s FONSI is only considered adequate if the agency took a “hard look” at the problem, the agency identified the relevant areas of environmental concern, the agency made a convincing case that the environmental impacts were insignificant as to the problems studied and identified; and if there were significant impacts, the agency convincingly established changes that reduced the impacts to a minimum.
41. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, require that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments.
42. An EA may contain mitigation measures to avoid significant impacts that would otherwise require the preparation of an EIS. BLM regulations require that an EA must identify and analyze mitigation measures that may be taken to avoid or reduce environmental harm.
43. An EA serves an important statutory purpose beyond being an initial step toward the preparation of an EIS or a FONSI. Independent of this requirement, an EA must discuss, in adequate detail, a reasonable range of alternatives.
44. An agency must take a “hard look” at the alternatives and the environmental impacts of each. An agency must consider a full range of alternatives that cover a full spectrum of possibilities and demonstrate reasoned decision-making. It must also give a reasoned explanation for rejecting each alternative.
45. BLM regulations also require that a No-Action alternative be analyzed at the same level of detail as the proposed action.
III. Federal Land Policy Management Act
46. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
47. FLPMA requires that the public lands planning process be accomplished through land use plans, FLPMA § 202(a). FLPMA recognizes, however, that a land use plan does not trump the statutory command of other laws, such as the WFHBA, which requires BLM to consider wild horses as an integral part of the public lands, FLPMA § 102(b), and mandates that BLM provide wild horses and burros specific protection. (Emphasis added.)
48. BLM’s failure to provide for a multiple use of the land including wild free-roaming horses is contrary to this provision of FLPMA.
IV. The Administrative Procedure Act
49. The APA provides that "final agency action for which there is no other adequate remedy in a court is subject to judicial review." 5 USC ss. 704. Because NEPA, the WFHBA and the U.S. Department of Hearing & Appeals do not provide private rights of actions to land-use plans, the Plaintiff relies upon the APA to bring these claims. "... To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall:
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556, 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
GENERAL ALLEGATIONS
BLMs allegations of "overpopulation" and their decision to categorize and remove entire herds as "excess" horses
50. Defendant BLM alleges that 620 horses are overpopulating on over one million acres of land. An overpopulation is considered a number of animals in excess of what the carrying capacity of the land can sustainably hold. BLM defines Carrying Capacity as;
"The maximum stocking rate possible without damaging vegetation or related resources. Carrying capacity may vary from year to year on the same area due to fluctuating forage production."
51. The methods used in determining if an overpopulation exists are set out in 16 U.S.C. ss. 1333 (b)(2) of the WFHBA;
"The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. § 1333 (b)(1) The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” (Emphasis' added.)
52. Plaintiff does not dispute the power of the BLM to remove “excess” horses from a herd or a range, or to conduct removals of whole herds in emergency situations such as fire or drought. What is disputed by the plaintiff is the BLM’s conducting "whole herds" removals under the guise of removing “excess” horses. By the BLM’s own standards, rules and guidelines, “excess” horses are those number of horses that have exceeded the (AML) number set for that particular HMA.
53. An “AML” is the BLM’s idea of the maximum number in any given herd that can graze the area sustainably. Presumably, any number of horses exceeding the number set for the “AML” would be deemed “excess” horses and therefore, those number of horses over and above the set limit for the AML could be deemed as "excess" as they are in numbers over and above the allowable number set for that particular HMA.
Plaintiffs submit that "0" is not an appropriate management level for any HMA in less than emergency situations.
54. The AML for Seaman Range was set at 159, and the current number of herd members for the Seaman Herd is 182. Elementary math and a basic understanding of the English Language will show that the excess number of horses (that number exceeding the number set for the “AML”) on the Seaman Range is 23 horses,.....not all 159.
55. The AML for the White River Herd was set at 90 and the current number is counted at 168. Elementary math and a basic understanding of the English Language will again show that the excess number of horses on the White River Range is 78, ....not all 168.
56. A recent ruling in this court addressed the issue of “whole herd” removals and concluded that the BLM did not have the authority to remove any horses from their historic rangelands unless they were deemed “excess” or removed due to emergency conditions. The court declined to answer as to whether the zeroing-out of whole herds could be considered as a removal of excess horses. (See Colorado Wild Horse & Burro Coalition, et. al., v. Salazar, et. al., Case # 1:06-cv-01609, ( DC District Ct., (Hon.RMC) decided August 5th., 2009) so the question here presented remains ripe for review. The Defendant BLM in the Colorado case initially took the position that the"whole herds" scheduled for removal were “excess animals.” (In Defs.’ Memorandum at 21.) However, the Defendants conceded the point that they were not by abandoning it at oral argument. (See Tr. at 6-7.)
57. Plaintiff submits that there is no authority either in statutory or administrative law that authorizes removal of whole herds from their historic rangelands in less than emergency situations, and that whole herd removals cannot and should not be allowed to occur under the guise of the BLM’s claim of “removal of excess horses.” It is a far stretch for any reasonable mind to imagine that the eradication of whole herds
could in any way be construed as a removal of that herd’s excessive numbers, since all of its numbers will have been removed.”
58. The BLM is authorized to remove only herd-members in excess of the numbers set in the AML, or whole herds in cases of emergencies. Since there has been no claim by the BLM of an emergency situation, by "zeroing out" whole herds and taking away their historic rangelands, the BLM is running afoul not only its own laws, rules, regulations, guidelines and mandates to protect wild horses on their historic rangelands, but of the applicable statutory laws as well.
The BLMs Claim of Insufficient Forage & Limited Water Supply
(a) Insufficient Forage
59. Claims are based on "bare bones" allegations as to "insufficient forage" with no specific information given as to how the determination was arrived at or as to what type of forage is deficient and where, except for mentioned as near water holes which are shared by grazing cattle that vastly outnumber the wild horses. Moreover, BLM states in the respective EAs that there are no current rangeland studies available for these particular HMAs, but also states that studies are in progress and when complete, "adjustments will be made to the plan, if needed" based upon the findings of the studies. Plaintiff submits that this is a bit like putting the cart before the horse or closing the barn door after the horse has run out. The question begs asking: Why not wait until the rangeland studies are complete before taking action on such a drastic and extreme plan if there is no emergency?
60. Plaintiff submits that it is arbitrary and capricious to remove whole herds of wild horses prior to the completion of any rangeland studies that would validate or dispel defendants allegations that the rangelands are unsuitable for wild horse grazing but suitable for privately owned cows. The Defendant Ely District BLM renewed all grazing permits upon these same lands for the year 2009. Moreover, the indications on some of these permits are that the allotments are in "satisfactory" condition or are "meeting standards." (See Grazing Permit Renewals, Ex.E).
(b) Limited Water Supply
61. Water sources in arid regions are always “limited.” However, the Ely / Lincoln County Districts of Nevada have the largest water supply in the whole of the state with numerous streams, wells, rivers and creeks. Furthermore, there are plans for a great expansion for increased water sources for the entire state of Nevada as is part of the development plans for this area . (See "Ely District Development Plans, ROD Ex.C). See also Notice of Availability of the Final Environmental Impact Statement for the Lincoln County Land Act Groundwater Development and Utility Right-of-Way Project, Nevada
62. lso as a result of the development plans, wildlife areas are being expanded with plans to put water "guzzers" in place so that the wild deer and elk will have water. Plaintiff submits that the defendants have a duty to provide for or allow access to same for our Nation’s wild horse herds. Plaintiff argues that the problem is not a lack of water sources but a lack of water rights. Nevada is a state that claims rights to all the waters and water sources within the state and, in fact, has been involved with much litigation with the BLM on this matter. A great part of the water problems on federal lands is owing to the fact that more grazing permits than ever are being retired. When that happens, the ranchers, who claim the water rights based upon state law “custom and usage,” shut off their "guzzlers" and other water supplies to the lands as they are no longer needed for their cows. As a consequence, the wild horses are forced to travel further in search of water, sometimes crossing invisible jurisdictional lines and getting themselves into trouble and danger of being shot by the ranchers as “strays.”.
63. There is no doubt that acquiring access to Nevadas waters is a legal, not a geographic problem or based on insufficiencies. Plaintiff submits that despite the difficulties and legalities involved in achieving water rights in Nevada, the BLM nevertheless has a duty to see to it that adequate water is available for the wild horses that roam within their various HMAs. Plaintiff further submits that the defendants have failed in that duty;
"It is BLM policy to conform with applicable state laws and administrative claims procedures for water rights when managing and administering all BLM programs and projects, except as otherwise specifically mandated by Congress. The State Engineer Office in the Division of Water Resources of the Nevada Department of Conservation and Natural Resources, administers water rights programs in Nevada based on beneficial use and the Doctrine of Prior Appropriation. The State of Nevada regulates its water rights programs using guidance in chapters 533 and 534 of the Nevada Revised Statutes. The BLM will acquire and perfect water rights necessary for public land management purposes according to these state laws and procedures. (Emphasis added.) The BLM also will protect existing water rights of the U.S. by protesting or providing comment during the state permitting process on applications for new water rights or for changes to existing water rights that may interfere with BLM’s ability to utilize such water for public land management purposes."
"http://www.blm.gov/pgdata/etc/medialib/blm/nv/field_offices/ely_field_office/ely_resource_management/rmppdftext.Par.1543.File.dat/04%20-%20ELY%20PRMP%202007%20Chapter%202.pdf"
BLM’s Failure to Consider other factors and permitted activities that contribute to rangeland degradation renders the whole assessment process as unreliable and erroneous
64. In both the Seaman / White River and Caliente Complex EAs, there is no mention of any other factors or permitted activities upon the same lands that contribute to rangeland degradation. There is no mention of the privately owned cattle and sheep that graze these same lands and outnumber the wild horses at a ratio of approximately 150- to-1. Nor is there any mention of the wildlife that graze there, such as big horn sheep, elk, and mule deer that outnumber the wild horses at a ratio of 3-to-1. Additionally, there is no mentionof the ORV use that is also permitted upon these same lands.
65. A Report by the Ecological Society of America entitled "Quantile Regression Reveals Hidden Bias and Uncertainty in Habitat Models," finds, when compiling statistical models for animals and/or ecological land management, ... "...Any important factor that is not explicitly included as a parameter in a statistical model is implicitly included as a part of the error distribution. When those unmeasured factors interact with the measured factors, the error distribution will be heterogeneous with respect to the variable included in the model. This creates a form of hidden bias." (Emphsis added)
66. Plaintiff submits that there is hidden bias in the EAs that fail to report any other activity upon these lands that contributes to rangeland conditions, and as such, should render the whole assessment as incomplete and unreliable for use as a basis for the removals.
Failure of proof that wild horses are to blame for rangeland degradation
67. Paragraphs (64) through (66) incorporated by reference herein.
BLM’s failure to consider a "full range" of alternative actions
68. In both the Seaman / White River and Caliente Complex EAs, under the "Alternative Actions" section, there is only one "alternative action" listed and that is a "no action" one. Plaintiffs submit that a "no action" plan offers no real alternative and does not meet the requirements of law mandating that a "full range" of alternative actions be considered. Plaintiffs suggest that there are numerous other alternatives that should have been offered for consideration, including but not limited to:
(a) Removal of only part of the herds.
(b) Adjustment in grazing permits as allowed for and in fact encouraged by law in
cases of conflicting resources:
(i) It has been clearly established through CFR 4710.5, that wild horse and burro preservation within their designated critical habitats is of higher priority than continuing livestock authorizations, as BLM is required to consider all options and alternatives to protect their habitat first. CFR 4710.5 states: "If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock."
(c) Adjustments in grazing practices such as "targeted" grazing. Targeted livestock grazing is a low-cost, low-energy input tool for manipulating and improving the species composition, yield, accessibility, nutritive quality, cover, structure, or diversity of vegetation in ways that favor wildlife.
(d) Restorative Measures such as the BLM is obligated to do when rangeland becomes so degraded it can no longer support the domestic and wild life that graze upon it, i.e.: fencing off of most damaged areas, rotating grazing areas, seeding, the installation of "guzzlers." ... etc.
69. Moreover, 43CFR1610.4-5 PUBLIC LANDS "Resource Management Planning, Formulation of Alternatives," states "All reasonable resource management alternatives shall be considered and several complete alternatives developed for detailed study. The alternatives developed shall reflect the variety of issues and guidance applicable to the resource uses. In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, all reasonable variations shall be treated as subalternatives. One alternative shall be for no action, which means continuation of present level or systems of resource use. The plan shall note any alternatives identified and eliminated from detailed study and shall briefly discuss the reasons for their elimination."
BLM’s Failure to Address Unresolved Conflicts
70. NEPA requires BLM to analyze in an EA alternatives that involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii). Contrary to this provision, the Defendant BLM
ignored plaintiffs objections to their plan of whole herd removals as well as the objections and concerns of other wild-horse advocates and some of the locals also. There was no attempt whatsoever by the defendants to resolve the objections or to mitigate the harm the objectors claimed they would incur as a result of the BLM’s actions.
FIRST CAUSE OF ACTION
VIOLATION OF THE WILD FREE-ROAMING HORSES AND BURROS ACT
(i) The BLM’s policy of “zeroing-out” whole herds and the taking away of their historic lands in less than emergency situations is contrary to the provisions of the WFHBA as well as to the legislative intent of the Act
The Act
71. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands,” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” (HAs) and are defined as “the geographic area identified as having been used by a herd as its habitat in 1971,” 43 C.F.R. § 4710.3-1.
72. The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals, determine appropriate management levels and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels), 16 U.S.C. § 1333 (b)(1). The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).(Emphasis added.)
73. Plaintiff does not dispute that the BLM has broad discretionary powers when it comes to its management decisions regarding wild horses and burros. Nor does she dispute the authority of the BLM to remove truly “excess” animals or even whole herds in emergency situations such as drought or fire. However, since the BLM is not claiming that any emergency situation exists within these lands that would serve as a legitimate basis for these “whole herd” removals, the plaintiff does herein allege that these “whole herd” removals and the permanent taking away of their historic rangelands is contrary to the provisions of the Act that mandates that wild horses herds be protected ‘upon the lands in which they lived’ at the time of the passage of the Act. Plaintiffs submit that “0” is not an appropriate management level for wild horse management areas in LESS THAN emergency situations, and that the BLM’s actions to zero out whole herds is contrary to the provisions of the Act.
(ii)The BLM’s policies and practices of “zeroing-out” entire herds of wild horses and the taking away of their historic rangelands is contrary to and nullifies core provisions of the WFHBA and, therefore, is an impermissible delegation unto itself of the lawmaking powers of the legislature, and, as such, violates the United States Constitution (Art.1)
74. Plaintiff does not dispute the broad discretionary power the legislature allows the BLM in making administrative decisions on how best to manage the Wild Horse and Burro Program. Plaintiff does however, submit that in so making the relevant decisions, same must conform with the “core” of the legislative intent of the act. Plaintiff submits that the core of the legislative intent of the WFHBA is to preserve and protect wild horses and burros upon the lands they are known to have lived and roamed in 1971.
75. BLM’s actions and decisions in "zeroing-out” entire herds of wild horses and taking away their historic rangelands nullify significant and integral portions of the WFHBA. In so doing, plaintiff submits that the defendants are impermissibly and unconstitutionally delegating unto themselves the lawmaking powers reserved solely for the United States Legislative branch of government. (U.S. Constitution, Art. 1)
76. In Krause v. Dept. of Employment Services, DC Ct. of Appeals, No. 02-AA-725, the ruling in regards to administrative powers was: "This court defers to an agency's interpretation of the statute it administers, so long as that interpretation is reasonable and consistent with the statutory language." Citing, Franklin, 709 A.2d @ 1176. "A qualifier to the rule of deference is that a court may reasonably expect such agency’s interpretations to be supported by appropriate analysis and consideration," citing Munson v. District of Columbia Dept. of Employment Servs., 71 A. 2d 623, 626-27 (D.C. 1998) Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d. 896, 899-902 (D.C.1995).
77. The BLM’s interpretation of the WFHBA and of their determination that whole herds can be zeroed-out and removed from their historic rangelands is contrary to the statutory language of the WHFBA that mandates that they be protected upon their historic lands. The nullification of the WFHBA by the BLM should not be allowed to continue.
SECOND CAUSE OF ACTION
Violation of the National Environmental Protection Act
Failure of the EAs to be objective and to not reflect subjective value judgments
78. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, requires that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments. (Emphasis added.)
79. Plaintiff submits that the BLM’s analysis was not based on the best available information as crucial information was withheld regarding other uses of the land that also contribute to rangeland degradation among other problems, and that the information thus provided was not objective and reflects the BLM’s subjective and traditionally negative value judgments concerning its obligation to properly manage our country’s wild horses and burros. It is no secret that the BLM and the ranchers are no friends of the wild horses and burros.
80. Paragraphs (64) through (66 ) are herein incorporated by reference. Plaintiff disputes the BLM’s FONSI and submits that the action is a significant federal action and requires the filing of an Environmental Impact Statement.
81. The Interior Board of Land Appeals (IBLA) has held that "a party challenging BLM’s FONSI has the burden of demonstrating with objective proof that the FONSI is based on a clear error of law or demonstrable error of fact, or that the BLM failed to consider a substantial environmental question of significance to the proposed action, or otherwise failed to abide by section 102(2)(C) of NEPA." Biodiversity Conservation Alliance et. el., 171 IBLA 218, 226 (2007).
82. Plaintiff submits that she has met her burden of demonstrating with objective proof that the FONSI is based on clear error of law and demonstrable error of fact, and that the BLM did fail to consider a substantial environmental question of significance to the action, (i.e., the other uses of the land) and otherwise failed to abide by section 102(2)(C) of NEPA.
83. BLM’s finding of no significant impact is in error and necessitates the preparation of an EIS. BLM’s DR is a major federal action approved contrary to NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations. BLM failed to take the requisite hard look at the foreseeable consequences of its actions. BLM failures to comply fully with NEPA and its regulations have been arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, thereby subject to reversal under the APA.
THIRD CAUSE OF ACTION
VIOLATION OF FEDERAL LAND MANAGEMENT ACT
84. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq. FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
85. Plaintiff submits that by eradicating whole herds of horses from Seaman, White River and Caliente Complex Herds and by taking away their historic rangelands is not consistent with the multiple use purpose of the FLMA.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
Failure to Notify the U.S. Congress and the Senate as Required by Statutory Law Violates the Due Process Clause of the U.S. Constitution (Art. XIV)
86. FLMA (2) provides:
"Any management decision or action pursuant to a management decision that excludes (that is, totally eliminates) one or more of the principal or major uses for two or more years with respect to a tract of land of one hundred thousand acres or more shall be reported by the Secretary to the House of Representatives and the Senate. If within ninety days from the giving of such notice (exclusive of days on which either House has adjourned for more than three consecutive days), the Congress adopts a concurrent resolution of non-approval of the management decision or action, then the management decision or action shall be promptly terminated by the Secretary. If the committee to which a resolution has been referred during the said ninety day period, has not reported it at the end of thirty calendar days after its referral, it shall be in order to either discharge the commit-tee from further consideration of such resolution or to discharge the committee from consideration of any other resolution with respect to the management decision or action. "
87. Plaintiff has diligently tried to obtain information as to whether or not the defendants complied with this provision of law, but to no avail. Phone calls to the clerk of the House of Representatives indicate there is no record of any notice being filed in regard to Nevada’s wild horse removals.
88. The total number of acres that will no longer be used as wild horse rangeland is 1.4 million. Even if not counting the cumulative numbers, many of the individual HMAs have well over the prerequisite 100,000 acres necessary to effect this law.
89. Plaintiff submits that the defendant’s failure to give notice as required under the provisions of this law is a violation of due process as guaranteed by the 14th Amendment to the United States Constitution.
PRAYERS FOR RELIEF
WHEREFORE, plaintiff respectfully requests that this Court enter judgment in favor of plaintiff and grant the following relief:
Issue a declaratory judgment that:
1. Defendants have exceeded their legal authority and abused their discretion in making the determination to remove whole herds from the historic and legally sanctioned and protected rangelands in less than emergency situations.
2. Defendants decisions are arbitrary and capricious in that they were based on incomplete data in EAs as contained no information as to other causes of rangeland degradation and no "reasonable range" of alternatives.
3. Issue a Preliminary Injunction and/or Temporary Restraining Order demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed.
4. That Defendants actions and policies of “zeroing-out” whole herds of wild horses and removing them from their historic rangelands in less than emergency situations violates the provisions of the WFHBA.
5. That defendants actions and policies are contrary to and in fact nullify core provisions of the WFHBA and as such, is an impermissible delegation onto itself of the lawmaking (and breaking) powers reserved for the legislature. (U.S. Constitution, Art.1)
6. Declare that the defendants failure to report the action to the House of Representatives and the Senate as required by law is a violation of the due process clause of the U.S. Constitution. (Am. 14)
7. Award plaintiff costs and expenses related to the prosecution of this case.
8. Award plaintiffs such other relief as the Court deems appropriate.
Respectfully submitted,
_________________, Plaintiff, Pro Se
Christine A Jubic
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
VERIFICATION
STATE OF NEW YORK
COUNTRY OF RENSSELAER
In the Matter of ; Case#_________
Jubic v. Salazar, et. al.,
I, Christine A. Jubic, am the pro se plaintiff in the above mentioned case, and do hereby swear, in lieu of Notary Public and under threat of penalty of perjury, I do attest;
That I am the author of the enclosed complaint and that I have read and understand its contents and to the best of my own knowledge and belief, believe them to be true.
I bring this law suit not with the intention to harass or annoy, but in efforts to address important questions of law that should be reviewed by this Court.
Signed this 16th day of September, 2009
_______________________________
Christine A. Jubic, Plaintiff, Pro Se
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
-------The Decision, Rendered September 23, 2009 - Case # 09-cv-1842
Judge Ellen S. Huvelle;
MEMORANDUM OPINION
"The matter before the Court on plaintiffs application to proceed in forma pauperis, her pro se complaint, and her motion for preliminary injunction and a temporary restraining order. For the reasons stated below, the Court will grant the application, deny her motion for injunctive relief and dismiss the complaint.
Plaintiff, who lives in Johnsonville, New York, brings this action to challange "the decisions and actions of the (Bureau of Land Management) to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands." She states that "her love affair with the Ely District Herds began in early 1980s when she was a resident of the state of Nevada, residing at various times in Nye, Lincoln and Clark Counties. Although plaintiff "currently resides outside the state of Nevada,...she is planning on revisiting them sometime again in the future "before she dies."
Generally, plaintiff alleges that the Bureau of Land Management has violated the Wild Free-roaming Horses and Burros Act, the National Environmental Policy Act, the Federal Land Policy Management Act, the Administrative Procedures Act, and the Due Process Clause of the Fourteenth Amendment, in approving a plan to remove all wild horse herds from certain lands in Nevada. She demands a declaritory judgment and injunctive relief "demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed."
Article III of the United States Constitution limits the jurisdictional power to deciding "cases and controversies." In re Navy Chaplaincy, 534 F. 3d 756 (D.C. Cir) (quoting US Constit. Art. III sec. 2, cert denied, ___US____, 129 S. Ct. 1918 (2008). A party has standing for purposes of Article III if her claims "spring from an injury in fact" - an invasion of a legally protected interest that is "concrete and particularized," "actual or imminent" and "fairly traceable" to the challanged act of the defendant, and likely to be redressed by a favorable decision in the federal court." Navegar , Inc. v. US, 103 F.3d 994, 998 (D.C. Cir. 1997) (quoting Lujan v. Defenders of Wildlife, 504 US 555, 560-61 (1992)). The Supreme Court has "consistantly held that a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizens interest in proper application of the Constitution and laws, and seeking relief that no more directly or tangibly benefits him than it does the public at large - does not state in an Article III case of controversy." Lujan v. Defenders of Wildlife, 504 US at 573-74.
Here, plaintiff cannot show that her injuries "spring from an injury in fact." She does not allege a property interest in either the horses or the lands on which the herds have roamed, or the existance if any other interest in or harm she stands to suffer if the BLMs plan takes effect. The Court concludes, then, that plaintiff does not have standing to bring this action. Her complaint will be dismissed, and her motion for injunctive relief will be denied as moot.
An Order consistant with the Memorandum Opinion will be issued seperately on this same date.
September 24, 2009 Ellen S. Huvelle
US District Judge
-------------------------------------------------------------------------------------
DISMISSAL ORDER
For the reasons stated in the accompanying Memrandum Opinion, it is hereby
ORDERED that plaintiffs application to proceed in forma pauperis is GRANTED, it is
FURTHER ORDERED that the plaintiffs motion for a preliminary injunction and a temporary restraining order is DENIED, and it is
FURTHER ORDERED that the complaint in this civil action is DISMISSED WITHOUT PREJUDICE.
This is a final, appealable Order. See Fed. R. App. P. 4(a)
SO ORDERED
September 24, 2009 Ellen Huvelle
US District Judge
-----------The Dismissal
Now as a long-time pro-se litigant, I am familiar with dismissals "without prejudice." Decisions dismissing a cause "without prejudice" is the courts way of leaving the door open for re-submission after deficiencies are corrected. The literal interpertation of "without prejudice" is "with leave to renew." Though it may seem that the judge was saying I did not have standing, what she IN FACT meant was that my argument, as written,....did not give me standing. I knew what the good judge Huvelle wanted me to do,...."beef up" my standing argument and re-submit, ...but how, was the question. Back to the research drawing board...and here is what I found; Pay close attention to the embolded text at the end. This is the case Judge Huvelle cited in her decision dismissing my case "without prejudice," so in other words, she led me to this case;
--------------------
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), was a United States Supreme Court case in which the court held that a group of wildlife conservation and other environmental organizations lacked standing to challenge regulations jointly issued by the U.S. Secretaries of the Interior and Commerce, regarding the geographic area to which a particular section of the Endangered Species Act of 1973 applied.
Said Lily Henning of the Legal Times:
In [this] decision, hailed by the right and attacked by the left as well as by a broad swath of legal scholars, the Court made clear that plaintiffs must suffer a concrete, discernible injury—not a "conjectural or hypothetical one"—to be able to bring suit in federal court. It, in effect, made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don't directly affect them. [1]
Writing for the majority, Justice Scalia stated that Defenders had failed to satisfy Constitutional requirements for “injury in fact” that would grant standing under the Endangered Species Act. He wrote that the Court rejected the view that the citizen suit provision of the statute conferred upon “all persons an abstract, self-contained, non-instrumental ‘right’ to have the Executive observe the procedures required by law”. Rather, he explained, the plaintiff must have suffered a tangible and particular harm, not unlike the requirement in common law.
Justice Scalia has subsequently asserted that a plane ticket to the affected geographic areas would have been enough to satisfy the imminent threat of future injury requirement of City of Los Angeles v. Lyons.
----------How about that? So what is this porr gal to do? Accept that invitation by the wild horse advocates in Nevada to come spend the Christmas Holidays with them so we can view (whats left) of these herds. Here is the "reworked" complaint I submitted back to the court entitled a "Motion to ReOpen the Case"; Basically, the only thing changed is the standing argument as set forth under the title / introduction, "Plaintiff" - so there is no need to re-read the complaint in its entirety as it is the same one as above
_____________________________________________________________________________________
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Christine A. Jubic, Case# 09-CV-1842
(ESH)
Plaintiff,
MOTION TO RE-OPEN CASE
THE UNITED STATES OF AMERICA, Jury Trial Demanded
Ken Salazar, Secretary of the U.S. Dept. of the Interior,
Mr. Robert Abbey, National Director, U.S. Bureau of Land Management,
Rosemary Thomas, District Manager, Ely Office of the U.S. Bureau of Land Management,
Defendants.
NATURE OF ACTION
This Motion w/ Complaint seeks to re-open the case as mentioned above, that was previously submitted to this Court but was dismissed on September 24, 2009 "without prejudice." The Complaint is for declaratory judgment seeking an emergency preliminary injunction and temporary restraining order, as well as seeking redress for violation of several administrative rules, federal statutes and of U.S. Constitutional provisions.
2. The complaint is a challenge to the decision and actions of the BLM in their plan to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (Lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands.
LITIGATION HISTORY
2.(a) This Complaint was originally submitted to the Court on or about September 19th, 2009, and at the same time an informa pauperous application was made asking for a waiver of the filing fee.
2.(b) On September 24, 2009, the application for informa paupers was granted and an Index # assigned (09-cv-1842) but the Complaint and Request for Injunction were dismissed "without prejudice." The reasons for the dismissal were plaintiffs failure to allege a property interest in the subject matter (wild horses or the lands) or failed to allege "any other interest in or harm" that she might suffer as a result of the proposed actions of the BLM. It was the courts determination that, absent these allegations in the Complaint, that plaintiff lacked standing to sue. (See Courts Decision & Order, attached as Ex. 1)
2. (c) Wherefore plaintiff respectfully Motions the Court to re-Open the case regarding plaintiffs Complaint and Request for Emergency Injunction upon her setting forth herein the proper criteria in which it is hoped will more fully establish her entitlement to sue.
JURISDICTION AND VENUE
3. This case concerns a federal question and, therefore, jurisdiction is proper under 28 U.S.C. § 1331. Venue is also proper under 28 U.S.C. § 1391(e). This Court may review defendants’ actions and order appropriate relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq.
PLAINTIFF
4. Plaintiff Jubic is a former resident and itinerant worker in the state of Nevada who, throughout the early to mid-1980's spent much of her leisure time traveling around Lincoln, Nye and Clark Counties for the sole purpose of observing the Seaman, White River and Caliente Wild Horse Herds. Plaintiff so enjoyed the esoteric effect of observing these particular herds in their wild and native habitats, that she made a return trip to these areas in 1996 for the sole purpose of observing them again. At the time of her last visit to the Caliente herds, Plaintiff observed and became enamored and bonded with a young red colored foal with "one white stocking and a white "V" on his forehead" that had causiously approached her. Plaintiff affectionately named the young foal "Victor" for the distinct "V" shape on his forehead. Plaintiff did make a promice to this foal that she would return to re-visit him and his herd someday. Eversince that time, despite the necessity of having to relocate herself back to the east-coast, the Plaintiff has been active in Nevadas Wild Horse Preservation Campaign and has in fact established like-minded friends in the Ely District of Nevada who have extended to her an invitation to return to the area over the 2009 Christmas Holidays to view the Seaman, White River and Caliente Herds once again. Nevada resident and fellow wild horse advocate Craig Downer has graciously offered to provide plaintiff travel assistance and quarters in his own home in order to provide the plaintiff an opportunity to view the Seaman, White River and Caliente Herds once again. Plaintiff has accepted the offer and currently has a bus ticket reserved in her name for a December ______, 2009 departure. Plaintiff is looking forward to and has definate plans to stay in Nevada over the 2009 Christmas Holidays for the sole purpose of observing the Seaman, White River and Caliente Herds. (See Affidavit of Craig Downer, submitted by seperate filing to the court on September 29, 2009.)
DEFENDANTS
5. The United States of America (USA) is the country of origin of the decision and actions as occurred or occurring and complained of in this case, and is responsible for the creation of administrative bodies such as the defendants herein represent, and is also responsible for the full and fair administration of its laws within its jurisdictional boundaries.
6. The United States Department of the Interior (DOI), is a branch of the United States Government charged with the responsibility of overseeing the operations on the Bureau of Land Management (BLM).
7. Ken Salazar is named as a Defendant herein, as Secretary of the Department of the Interior.
8. The United States Bureau of Land Management (BLM), is a branch of the United States Government charged with the protection and management of America’s wild free-roaming horses and burros .
9. Mr. Robert Abbey, is named as a defendant herein as Director of the Bureau of Land Management.
10. The United States Bureau of Land Management, Ely District Office, is a branch of the United States Government charged with the protection and management of America’s wild free-roaming equines. It is also the Distinct Office in charge of the removals challenged in this complaint.
11. Rosemary Thomas is named as a defendant herein as Manager of the Ely District Office of the BLM in the state of Nevada.
HISTORICAL BACKGROUND
12. Following the passage of the WFHBA, the BLM delineated the Seaman, and White River Herd Areas (HAs,) as lands upon which wild horses roamed in 1971. The total acreage of these two HAs combined is approximately 475,100 acres, and was designated by the BLM as “principally“ for wild horse use. Pursuant to the 1986 Egan RMP, 100% of these lands were designated as wild horse herd management areas (HMAs) suitable for long-term management of wild horses. The 1986 Egan RMP also established the “Appropriate Management Level” (“AML” or the number of horses that the HMAs could “sustainably contain”. The AMLs were set at 159 wild horses for the Seaman and 90 for the White River. The HMAs and AMLs were set for the Caliente Complex of Herds at about the same time. Altogether, the Seaman, White River and Caliente Complex make up eleven (11) separate and distinct herds.
13. In 2008, the Approved Ely District Resource Management Plan (RMP) reset the AMLs for all eleven (11) of these herds at “0”, and dropped the HMA status of the 1.4 million acres, and returned it to HA status as suitable for cattle, sheep and wildlife grazing only. The Ely RMP suggested removal of 100% of the wild horse herds in these areas, citing at pg. 2 para. 1.1, in relevant part,....“Remove wild horses and drop herd management area status...........“Removal of all wild horses from the Seaman and White River HAs is needed at this time in order to implement this management direction and to prevent further damage to the range resulting from the current overpopulation.” (See Ely Development Plans RMP, Ex. C).
14. It is apparent from this bare-bones allegation in Ely RMP that the planners, as well as the BLM, would have us believe that the ranges are being damaged due only to an overpopulation of wild horses. No mention is made in the RMP or any other land-use document prepared for this action, of the various other uses on this land that contribute to rangeland degradation, such as livestock & wildlife grazing which vastly outnumber the wild horses. Nor was any mention made of the off-road vehicle use permitted also upon these lands, or of the plans for expansion of same.
15. More specific but also generalized allegations as to the reasons for the action were given in the Seaman / White River Environmental Assessment and are listed as, “insufficient forage and limited water sources.“ (S/WR EA, pg.4,5, para.1.3, Ex A.) Also noted almost as an aside but perhaps is a more accurate and honest telling of the real reason behind these whole herd removals is the planner’s own admissions that the action is "also needed “ to "make significant progress towards fulfillment of “The Mojave / Southern Great Basin Resource Management Plan, " (M/SGB RMP). The same was stated in the Caliente Complex EA as reason for the zeroing out of the nine (9) Caliente herds (See Caliente EA, pg.1.0, para.1.2, Ex. B).
The Mojave / Southern Great Basin Resource Management Plan (M/SGB RMP)
16. The RMP, as initiated under the provisions of the Southern Nevada Land Management Act and the Eastern Nevada Landscape Restoration Project, is supported by a group of special interest groups organizing themselves under the name of The Eastern Nevada Landscape Restoration Coalition. This coalition consist of several organizations that have traditionally been hostile towards the wild horses as they compete for forage with cattle, sheep, elk, mule deer and big horn sheep. The wild horses also stand in the way their expansion and development plans. The organizations included in the coalition are:
Bighorns Unlimited, Bureau of Land Management, Ducks Unlimited-Nevada, Fraternity of the Desert Bighorn, Friends of Nevada Wilderness, Great Basin National Park, Mule Deer Foundation, Natural Resource Conservation Service, Nevada Cattlemen's Association, Nevada Farm Bureau Federation, Nevada Wool Growers Association, Red Rock Audubon Society, Rocky Mountain Elk Foundation and The Nature Conservancy-Nevada.
17. The overall plan, as set forth in the M/SGB RMP and other various land use documents, is for developments to take place on wild horse rangelands once they are removed. There are plans for expansion of wilderness areas as well as expanded trails for ORVs and other kinds of developments including solar and wind farms and water resource enhancement projects. Lands that are not planned for development will be offered for sale to the general public. (See Ely Development Plans ROD, Ex C).
18. The Plaintiff admits that economic interests are a real and valid concern when developing land management plans, but submits that the law requires that land-management plans and decisions should not be based or decided upon economic factors alone. Plaintiff submits that the relevant law requires a balancing of considerations.
19. The comment period for the Seaman and White River Removals ended on July 6, 2009, and the comment period for the Caliente removals ended on July 15, 2009. Plaintiff vigorously opposed these plans and duly made objections and/or comments as allowed by BLMs administrative laws -- all to no avail.
20. On August 14th, 2009, the final decision and order regarding the Seaman and White River Gathers was issued authorizing the zeroing-out of these two herds and the "de-classification" of their rangelands as no longer suitable for wild horse herd management areas (HMAs). The Order was issued under "full force and effect."
20.(a) On September 25, 2009, the final decision and order regarding the Caliente Gather was issued authorizing the zeroing out of the nine(9) Caliente Herds.
ADMINISTRATIVE APPEAL IS FUTILE
21. In regards to the Seaman / White River Gathers, on August 17, 2009, plaintiff did file an administrative appeal and also filed at the same time a petition for a stay of action pending the outcome of her appeal (see "S/WR Appeal" attached as Ex.D), but due to the "full force and effect" clause governing administrative appeals, plaintiffs appeal have no effect to prevent these removals. Plaintiff submits that, even in the event of a successful appeal, it would be futile to stop the round-ups. By the time the appeal would be decided, the “whole herd” removals plaintiff seeks to prevent would have already taken place.
22. The effectiveness of a BLM decision to round up and remove wild horses during the pendency of an appeal to the Board of Land Appeals is controlled by 43 C.F.R. §4770.-3(c). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse removal decision into full force and effect, and it "take[s] effect on the date specified, regardless of an appeal."
23. Pursuant to this law, final decisions of the BLM are carried out regardless of any appeal that may be pending. Although this same rule gives the administration broad discretionary power to grant a stay of action pending the outcome of an administrative appeal, to the best of the plaintiff’s own knowledge and belief, such a stay is rarely, if ever, granted in the matter of wild horse removals.
24. The round-ups of the Seaman and White River Herds did commence on Aug. 19, 2009, as scheduled.
25. On September 16, 2009, Plaintiff did receive a decision on her administrative appeal & petition for a stay in regards to the Seaman / White River Gathers. The appeal was denied on the grounds that land-management (RMPs) decisions are not reviewable by the Board of Land Appeals, and the Petition for a Stay of Action was denied on the ground of "mootness" in view of the fact that the (Seaman and White River) gathers were commenced and nearly complete. (See Appeal & Decision, Ex.D(a)). Plaintiff submits that the matter of the petition for a stay is not moot as long as a single wild horse or burro remains in any of these endangered herd management areas. Although the gathers for the Seaman and White River Herds has commenced already, plaintiff submits that all horses are rarely, if ever, gathered in the course of one, two, or even three or more round-ups. There are almost always stragglers who evade capture and will have to wait for the next roundup, whenever that will be.
26. On September 26, 2009, Plaintiff did file an administrative appeal in regards to the Caliente Gather. Although a decision has yet to be rendered, for the same reasons as indicated above and as with her Seaman, White River Appeal, plaintiff believes the administrative appeal is futile even if won.
27. The Caliente Gathers are schedualed to commence on Oct. 1, 2009.
27 (a) Plaintiff submits that she shares a "property right" to these wild horses and to the historic lands they range upon in that the horses and the lands are the property of the American Public of which she is a member of.
28. The BLM’s interpretation of its authority to zero-out whole herds and take away their historic lands will result in the extermination of all wild horse herds in the Seaman, White River and Caliente Complex and will cause irreparable harm to the plaintiff if immediate action is not taken to prevent it, in that once removed, the wild horses and burros of the Seaman, White River and Caliente Herds will not be there for her to enjoy on her planned future visit to the area over the 2009 Christmas Holiday.
29. Because BLM’s challenged actions are contrary to law and will result in irreparable injury to the plaintiff, plaintiff is seeking declaratory and emergency injunctive relief as well as a Temporary Restraining Order to prevent any further gathers of the wild horses in the Seaman, White River and Caliente herds.
29. Defendant BLM’s actions, as set forth in greater detail herein, inflict current and immediate harm to plaintiff’s procedural and substantive interests in the aesthetic enjoyment and protection of individual wild horses in these resective herds.
STATUTORY AND REGULATORY BACKGROUND GIVING RISE TO
PLAINTIFF’S CAUSES OF ACTION
I. The Wild Free-Roaming Horses and Burros Act
30. Through the WFHBA, Congress found and declared that, “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Upon finding this, Congress stated that its policy was that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of public lands.” 16 U.S.C. § 1331.
31. The BLM and the Forest Service (USFS) have exclusive authority under the WFHBA for the protection of wild horses and burros on the public lands administered by their offices. 16 U.S.C. § 1331(a). The WFHBA requires that BLM’s and USFS’s management activities be at “the minimal feasible level.” Id. According to BLM’s own regulations, BLM must protect wild horses and burros from unauthorized capture, branding, harassment or death and provide these animals with humane care and treatment. 43 C.F.R. § 4700.
32. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands.” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” and are
defined as “the geographic area identified as having been used by a herd as its habitat in 1971.” 43 C.F.R. § 4700.0-5(d).
33. Under the WFHBA, “range” means the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands,” 16 U.S.C. § 1332 (c).
34. The Act requires the Secretary to “protect and manage wild free-roaming horses and burros as components of the public lands . . . . The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. §
1333 (b)(1). The Act also provides that, “Where the Secretary determines . . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).
35. In the Senate Committee report accompanying the bill that became law the Senate noted, “The committee wishes to emphasize that the management of the wild free-roaming horses and burros be kept to a minimum both from the aspect of reducing costs of such a program as well as to deter the possibility of ‘zoo like’ developments.” S. Rep. 92-242, 92nd Cong., 1st Sess. 1971 at 2152. “An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve . . . leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man.” Id.
II. National Environmental Policy Act
36. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., any major federal actions that significantly affects the quality of the human environment requires the preparation of an EIS. NEPA §102(2) (C). The language
and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by consideration of a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.
37. Agencies may decide instead of preparing an EIS, to prepare an EA first. An EA serves three purposes: it assists in agency’s decision-making on whether to prepare an EIS or Finding of No Significant Impact (“FONSI”); it independently ensures compliance with NEPA even when no EIS is required; and it facilitates the preparation of an EIS if one is required. 40 C.F.R. § 1508.9(a) (2007).
38. In an EA, NEPA requires BLM to analyze alternatives which involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii).
39. Although an EA is a “concise public document,” it must include a discussion of the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives and a listing of the persons and agencies consulted. 40 C.F.R. §§ 1508.9(a), 1508.9(b).
40. An EA’s FONSI is only considered adequate if the agency took a “hard look” at the problem, the agency identified the relevant areas of environmental concern, the agency made a convincing case that the environmental impacts were insignificant as to the problems studied and identified; and if there were significant impacts, the agency convincingly established changes that reduced the impacts to a minimum.
41. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, require that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments.
42. An EA may contain mitigation measures to avoid significant impacts that would otherwise require the preparation of an EIS. BLM regulations require that an EA must identify and analyze mitigation measures that may be taken to avoid or reduce environmental harm.
43. An EA serves an important statutory purpose beyond being an initial step toward the preparation of an EIS or a FONSI. Independent of this requirement, an EA must discuss, in adequate detail, a reasonable range of alternatives.
44. An agency must take a “hard look” at the alternatives and the environmental impacts of each. An agency must consider a full range of alternatives that cover a full spectrum of possibilities and demonstrate reasoned decision-making. It must also give
a reasoned explanation for rejecting each alternative.
45. BLM regulations also require that a No-Action alternative be analyzed at the same level of detail as the proposed action.
III. Federal Land Policy Management Act
46. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
47. FLPMA requires that the public lands planning process be accomplished through land use plans, FLPMA § 202(a). FLPMA recognizes, however, that a land use plan does not trump the statutory command of other laws, such as the WFHBA, which requires BLM to consider wild horses as an integral part of the public lands, FLPMA § 102(b), and mandates that BLM provide wild horses and burros specific protection. (Emphasis added.)
48. BLM’s failure to provide for a multiple use of the land including wild free-roaming horses is contrary to this provision of FLPMA.
IV. The Administrative Procedure Act
49. The APA provides that "final agency action for which there is no other adequate remedy in a court is subject to judicial review." 5 USC ss. 704. Because NEPA, the WFHBA and the U.S. Department of Hearing & Appeals do not provide private rights of actions to land-use plans, the Plaintiff relies upon the APA to bring these claims. "... To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall:
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556, 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
GENERAL ALLEGATIONS
BLMs allegations of "overpopulation" and their decision to categorize and remove entire herds as "excess" horses
50. Defendant BLM alleges that 620 horses are overpopulating on over one million acres of land. An overpopulation is considered a number of animals in excess of what the carrying capacity of the land can sustainably hold. BLM defines Carrying Capacity as;
"The maximum stocking rate possible without damaging vegetation or related resources. Carrying capacity may vary from year to year on the same area due to fluctuating forage production."
51. The methods used in determining if an overpopulation exists are set out in 16 U.S.C. ss. 1333 (b)(2) of the WFHBA;
"The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”.
16 U.S.C. § 1333 (b)(1) The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” (Emphasis' added.)
52. Plaintiff does not dispute the power of the BLM to remove “excess” horses from a herd or a range, or to conduct removals of whole herds in emergency situations such as fire or drought. What is disputed by the plaintiff is the BLM’s conducting "whole herds" removals under the guise of removing “excess” horses. By the BLM’s own standards, rules and guidelines, “excess” horses are those number of horses that have exceeded the (AML) number set for that particular HMA.
53. An “AML” is the BLM’s idea of the maximum number in any given herd that can graze the area sustainably. Presumably, any number of horses exceeding the number set for the “AML” would be deemed “excess” horses and therefore, those number of horses over and above the set limit for the AML could be deemed as "excess" as they are in numbers over and above the allowable number set for that particular HMA.
Plaintiffs submit that "0" is not an appropriate management level for any HMA in less than emergency situations.
54. The AML for Seaman Range was set at 159, and the current number of herd members for the Seaman Herd is 182. Elementary math and a basic understanding of the English Language will show that the excess number of horses (that number exceeding the number set for the “AML”) on the Seaman Range is 23 horses,.....not all 159.
55. The AML for the White River Herd was set at 90 and the current number is counted at 168. Elementary math and a basic understanding of the English Language will again show that the excess number of horses on the White River Range is 78, ....not all 168.
56. A recent ruling in this court addressed the issue of “whole herd” removals and concluded that the BLM did not have the authority to remove any horses from their historic rangelands unless they were deemed “excess” or removed due to emergency conditions. The court declined to answer as to whether the zeroing-out of whole herds could be considered as a removal of excess horses. (See Colorado Wild Horse & Burro Coalition, et. al., v. Salazar, et. al., Case # 1:06-cv-01609, ( DC District Ct., (Hon.RMC) decided August 5th., 2009) so the question here presented remains ripe for review. The Defendant BLM in the Colorado case initially took the position that the"whole herds" scheduled for removal were “excess animals.” (In Defs.’ Memorandum at 21.) However, the Defendants conceded the point that they were not by abandoning it at oral argument. (See Tr. at 6-7.)
57. Plaintiff submits that there is no authority either in statutory or administrative law that authorizes removal of whole herds from their historic rangelands in less than emergency situations, and that whole herd removals cannot and should not be allowed to occur under the guise of the BLM’s claim of “removal of excess horses.” It is a far stretch for any reasonable mind to imagine that the eradication of whole herds
could in any way be construed as a removal of that herd’s excessive numbers, since all of its numbers will have been removed.”
58. The BLM is authorized to remove only herd-members in excess of the numbers set in the AML, or whole herds in cases of emergencies. Since there has been no claim by the BLM of an emergency situation, by "zeroing out" whole herds and taking away their historic rangelands, the BLM is running afoul not only its own laws, rules, regulations, guidelines and mandates to protect wild horses on their historic rangelands, but of the applicable statutory laws as well.
The BLMs Claim of Insufficient Forage & Limited Water Supply
(a) Insufficient Forage
59. Claims are based on "bare bones" allegations as to "insufficient forage" with no specific information given as to how the determination was arrived at or as to what type of forage is deficient and where, except for mentioned as near water holes which
are shared by grazing cattle that vastly outnumber the wild horses. Moreover, BLM states in the respective EAs that there are no current rangeland studies available for these particular HMAs, but also states that studies are in progress and when complete, "adjustments will be made to the plan, if needed" based upon the findings of the studies. Plaintiff submits that this is a bit like putting the cart before the horse or closing the barn door after the horse has run out. The question begs asking: Why not wait until the rangeland studies are complete before taking action on such a drastic and extreme plan if there is no emergency?
60. Plaintiff submits that it is arbitrary and capricious to remove whole herds of wild horses prior to the completion of any rangeland studies that would validate or dispel defendants allegations that the rangelands are unsuitable for wild horse grazing but suitable for privately owned cows. The Defendant Ely District BLM renewed all grazing permits upon these same lands for the year 2009. Moreover, the indications on some of these permits are that the allotments are in "satisfactory" condition or are "meeting standards." (See Grazing Permit Renewals, Ex.E).
(b) Limited Water Supply
61. Water sources in arid regions are always “limited.” However, the Ely / Lincoln County Districts of Nevada have the largest water supply in the whole of the state with numerous streams, wells, rivers and creeks. Furthermore, there are plans for a great expansion for increased water sources for the entire state of Nevada as is part of the development plans for this area . (See "Ely District Development Plans, ROD Ex.C). See also Notice of Availability of the Final Environmental Impact Statement for the Lincoln County Land Act Groundwater Development and Utility Right-of-Way Project, Nevada
62. lso as a result of the development plans, wildlife areas are being expanded with plans to put water "guzzers" in place so that the wild deer and elk will have water. Plaintiff submits that the defendants have a duty to provide for or allow access to
same for our Nation’s wild horse herds. Plaintiff argues that the problem is not a lack of water sources but a lack of water rights. Nevada is a state that claims rights to all the waters and water sources within the state and, in fact, has been involved with much litigation with the BLM on this matter. A great part of the water problems on federal lands is owing to the fact that more grazing permits than ever are being retired. When that happens, the ranchers, who claim the water rights based upon state law “custom and usage,” shut off their "guzzlers" and other water supplies to the lands as they are no longer needed for their cows. As a consequence, the wild horses are forced to travel further in search of water, sometimes crossing invisible jurisdictional lines and getting themselves into trouble and danger of being shot by the ranchers as “strays.”.
63. There is no doubt that acquiring access to Nevadas waters is a legal, not a geographic problem or based on insufficiencies. Plaintiff submits that despite the difficulties and legalities involved in achieving water rights in Nevada, the BLM nevertheless has a duty to see to it that adequate water is available for the wild horses that roam within their various HMAs. Plaintiff further submits that the defendants have failed in that duty;
"It is BLM policy to conform with applicable state laws and administrative claims procedures for water rights when managing and administering all BLM programs and projects, except as otherwise specifically mandated by Congress. The State Engineer Office in the Division of Water Resources of the Nevada Department of Conservation and Natural Resources, administers water rights programs in Nevada based on beneficial use and the Doctrine of Prior Appropriation. The State of Nevada regulates its water rights
programs using guidance in chapters 533 and 534 of the Nevada Revised Statutes. The BLM will acquire and perfect water rights necessary for public land management purposes according to these state laws and procedures. (Emphasis added.) The BLM also will protect existing water rights of the U.S. by protesting or providing comment
during the state permitting process on applications for new water rights or for changes to existing water rights that may interfere with BLM’s ability to utilize such water for public land management purposes."
"http://www.blm.gov/pgdata/etc/medialib/blm/nv/field_offices/ely_field_office/ely_resource_management/rmppdftext.Par.1543.File.dat/04%20-%20ELY%20PRMP%202007%20Chapter%202.pdf"
BLM’s Failure to Consider other factors and permitted activities that contribute to rangeland degradation renders the whole assessment process as unreliable and erroneous
64. In both the Seaman / White River and Caliente Complex EAs, there is no mention of any other factors or permitted activities upon the same lands that contribute to rangeland degradation. There is no mention of the privately owned cattle and sheep that graze these same lands and outnumber the wild horses at a ratio of approximately 150- to-1. Nor is there any mention of the wildlife that graze there, such as big horn sheep, elk, and mule deer that outnumber the wild horses at a ratio of 3-to-1. Additionally, there is no mentionof the ORV use that is also permitted upon these same lands.
65. A Report by the Ecological Society of America entitled "Quantile Regression Reveals Hidden Bias and Uncertainty in Habitat Models," finds, when compiling statistical models for animals and/or ecological land management, ... "...Any important factor that is not explicitly included as a parameter in a statistical model is implicitly included as a part of the error distribution. When those unmeasured factors interact with the measured factors, the error distribution will be heterogeneous with respect to the variable included in the model. This creates a form of hidden bias." (Emphsis added)
66. Plaintiff submits that there is hidden bias in the EAs that fail to report any other activity upon these lands that contributes to rangeland conditions, and as such, should render the whole assessment as incomplete and unreliable for use as a basis for the removals.
Failure of proof that wild horses are to blame for rangeland degradation
67. Paragraphs (64) through (66) incorporated by reference herein.
BLM’s failure to consider a "full range" of alternative actions
68. In both the Seaman / White River and Caliente Complex EAs, under the "Alternative Actions" section, there is only one "alternative action" listed and that is a "no action" one. Plaintiffs submit that a "no action" plan offers no real alternative and does not meet the requirements of law mandating that a "full range" of alternative actions be considered. Plaintiffs suggest that there are numerous other alternatives that should have been offered for consideration, including but not limited to:
(a) Removal of only part of the herds.
(b) Adjustment in grazing permits as allowed for and in fact encouraged by law in
cases of conflicting resources:
(i) It has been clearly established through CFR 4710.5, that wild horse and burro preservation within their designated critical habitats is of higher priority than continuing livestock authorizations, as BLM is required to consider all options and alternatives to protect their habitat first. CFR 4710.5 states: "If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock."
(c) Adjustments in grazing practices such as "targeted" grazing. Targeted livestock grazing is a low-cost, low-energy input tool for manipulating and improving the species composition, yield, accessibility, nutritive quality, cover, structure, or diversity of vegetation in ways that favor wildlife.
(d) Restorative Measures such as the BLM is obligated to do when rangeland becomes so degraded it can no longer support the domestic and wild life that graze upon it, i.e.: fencing off of most damaged areas, rotating grazing areas, seeding, the installation of "guzzlers." ... etc.
69. Moreover, 43CFR1610.4-5 PUBLIC LANDS "Resource Management Planning, Formulation of Alternatives," states "All reasonable resource management alternatives shall be considered and several complete alternatives developed for detailed study. The alternatives developed shall reflect the variety of issues and guidance applicable to the resource uses. In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, all reasonable variations shall be treated as subalternatives. One alternative shall be for no action, which means continuation of present level or systems of resource use. The plan shall note any alternatives identified and eliminated from detailed study and shall briefly discuss the reasons for their elimination."
BLM’s Failure to Address Unresolved Conflicts
70. NEPA requires BLM to analyze in an EA alternatives that involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii). Contrary to this provision, the Defendant BLM
ignored plaintiffs objections to their plan of whole herd removals as well as the objections and concerns of other wild-horse advocates and some of the locals also. There was no attempt whatsoever by the defendants to resolve the objections or to mitigate the harm the objectors claimed they would incur as a result of the BLM’s actions.
FIRST CAUSE OF ACTION
VIOLATION OF THE WILD FREE-ROAMING HORSES AND BURROS ACT
(i) The BLM’s policy of “zeroing-out” whole herds and the taking away of their historic lands in less than emergency situations is contrary to the provisions of the WFHBA as well as to the legislative intent of the Act
The Act
71. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands,” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” (HAs) and are defined as “the geographic area identified as having been used by a herd as its habitat in 1971,” 43 C.F.R. § 4710.3-1.
72. The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals, determine appropriate management levels and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels), 16 U.S.C. § 1333 (b)(1). The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).(Emphasis added.)
73. Plaintiff does not dispute that the BLM has broad discretionary powers when it comes to its management decisions regarding wild horses and burros. Nor does she dispute the authority of the BLM to remove truly “excess” animals or even whole herds in emergency situations such as drought or fire. However, since the BLM is not claiming that any emergency situation exists within these lands that would serve as a legitimate basis for these “whole herd” removals, the plaintiff does herein allege that these “whole herd” removals and the permanent taking away of their historic rangelands is contrary to the provisions of the Act that mandates that wild horses herds be protected ‘upon the lands in which they lived’ at the time of the passage of the Act. Plaintiffs submit that “0” is not an appropriate management level for wild horse management areas in LESS THAN emergency situations, and that the BLM’s actions to zero out whole herds is contrary to the provisions of the Act.
(ii)The BLM’s policies and practices of “zeroing-out” entire herds of wild horses and the taking away of their historic rangelands is contrary to and nullifies core provisions of the WFHBA and, therefore, is an impermissible delegation unto itself of the lawmaking powers of the legislature, and, as such, violates the United States Constitution (Art.1)
74. Plaintiff does not dispute the broad discretionary power the legislature allows the BLM in making administrative decisions on how best to manage the Wild Horse and Burro Program. Plaintiff does however, submit that in so making the relevant decisions, same must conform with the “core” of the legislative intent of the act. Plaintiff submits that the core of the legislative intent of the WFHBA is to preserve and protect wild horses and burros upon the lands they are known to have lived and roamed in 1971.
75. BLM’s actions and decisions in "zeroing-out” entire herds of wild horses and taking away their historic rangelands nullify significant and integral portions of the WFHBA. In so doing, plaintiff submits that the defendants are impermissibly and unconstitutionally delegating unto themselves the lawmaking powers reserved solely for the United States Legislative branch of government. (U.S. Constitution, Art. 1)
76. In Krause v. Dept. of Employment Services, DC Ct. of Appeals, No. 02-AA-725, the ruling in regards to administrative powers was: "This court defers to an agency's interpretation of the statute it administers, so long as that interpretation is reasonable and consistent with the statutory language." Citing, Franklin, 709 A.2d @ 1176. "A qualifier to the rule of deference is that a court may reasonably expect such agency’s interpretations to be supported by appropriate analysis and consideration," citing Munson v. District of Columbia Dept. of Employment Servs., 71 A. 2d 623, 626-27 (D.C. 1998) Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d. 896, 899-902 (D.C.1995).
77. The BLM’s interpretation of the WFHBA and of their determination that whole herds can be zeroed-out and removed from their historic rangelands is contrary to the statutory language of the WHFBA that mandates that they be protected upon their historic lands. The nullification of the WFHBA by the BLM should not be allowed to continue.
SECOND CAUSE OF ACTION
Violation of the National Environmental Protection Act
Failure of the EAs to be objective and to not reflect subjective value judgments
78. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, requires that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments. (Emphasis added.)
79. Plaintiff submits that the BLM’s analysis was not based on the best available information as crucial information was withheld regarding other uses of the land that also contribute to rangeland degradation among other problems, and that the information thus provided was not objective and reflects the BLM’s subjective and traditionally negative value judgments concerning its obligation to properly manage our country’s wild horses and burros. It is no secret that the BLM and the ranchers are no friends of the wild horses and burros.
80. Paragraphs (64) through (66 ) are herein incorporated by reference. Plaintiff disputes the BLM’s FONSI and submits that the action is a significant federal action and requires the filing of an Environmental Impact Statement.
81. The Interior Board of Land Appeals (IBLA) has held that "a party challenging BLM’s FONSI has the burden of demonstrating with objective proof that the FONSI is based on a clear error of law or demonstrable error of fact, or that the BLM failed to consider a substantial environmental question of significance to the proposed action, or otherwise failed to abide by section 102(2)(C) of NEPA." Biodiversity Conservation Alliance et. el., 171 IBLA 218, 226 (2007).
82. Plaintiff submits that she has met her burden of demonstrating with objective proof that the FONSI is based on clear error of law and demonstrable error of fact, and that the BLM did fail to consider a substantial environmental question of significance to the action, (i.e., the other uses of the land) and otherwise failed to abide by section 102(2)(C) of NEPA.
83. BLM’s finding of no significant impact is in error and necessitates the preparation of an EIS. BLM’s DR is a major federal action approved contrary to NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations. BLM failed to take the requisite hard look at the foreseeable consequences of its actions. BLM failures to comply fully with NEPA and its regulations have been arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, thereby subject to reversal under the APA.
THIRD CAUSE OF ACTION
VIOLATION OF FEDERAL LAND MANAGEMENT ACT
84. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq. FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
85. Plaintiff submits that by eradicating whole herds of horses from Seaman, White River and Caliente Complex Herds and by taking away their historic rangelands is not consistent with the multiple use purpose of the FLMA.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
Failure to Notify the U.S. Congress and the Senate as Required by Statutory Law Violates the Due Process Clause of the U.S. Constitution (Art. XIV)
86. FLMA (2) provides:
"Any management decision or action pursuant to a management decision that excludes (that is, totally eliminates) one or more of the principal or major uses for two or more years with respect to a tract of land of one hundred thousand acres or more shall be reported by the Secretary to the House of Representatives and the Senate. If within ninety days from the giving of such notice (exclusive of days on which either House has adjourned for more than three consecutive days), the Congress adopts a concurrent resolution of non-approval of the management decision or action, then the management decision or action shall be promptly terminated by the Secretary. If the committee to which a resolution has been referred during the said ninety day period, has not reported it at the end of thirty calendar days after its referral, it shall be in order to either discharge the commit-tee from further consideration of such resolution or to discharge the committee from consideration of any other resolution with respect to the management decision or action. "
87. Plaintiff has diligently tried to obtain information as to whether or not the defendants complied with this provision of law, but to no avail. Phone calls to the clerk of the House of Representatives indicate there is no record of any notice being filed in
regard to Nevada’s wild horse removals.
88. The total number of acres that will no longer be used as wild horse rangeland is 1.4 million. Even if not counting the cumulative numbers, many of the individual HMAs have well over the prerequisite 100,000 acres necessary to effect this law.
89. Plaintiff submits that the defendant’s failure to give notice as required under the provisions of this law is a violation of due process as guaranteed by the 14th Amendment to the United States Constitution.
PRAYERS FOR RELIEF
WHEREFORE, plaintiff respectfully requests that this Court enter judgment in favor of
plaintiff and grant the following relief:
Issue a declaratory judgment that:
1. Defendants have exceeded their legal authority and abused their discretion in making the determination to remove whole herds from the historic and legally sanctioned and protected rangelands in less than emergency situations.
2. Defendants decisions are arbitrary and capricious in that they were based on incomplete data in EAs as contained no information as to other causes of rangeland degradation and no "reasonable range" of alternatives.
3. Issue a Preliminary Injunction and/or Temporary Restraining Order demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed.
4. That Defendants actions and policies of “zeroing-out” whole herds of wild horses and removing them from their historic rangelands in less than emergency situations violates the provisions of the WFHBA.
5. That defendants actions and policies are contrary to and in fact nullify core provisions of the WFHBA and as such, is an impermissible delegation onto itself of the lawmaking (and breaking) powers reserved for the legislature. (U.S. Constitution, Art.1)
6. Declare that the defendants failure to report the action to the House of Representatives and the Senate as required by law is a violation of the due process clause of the U.S. Constitution. (Am. 14)
7. Award plaintiff costs and expenses related to the prosecution of this case.
8. Award plaintiffs such other relief as the Court deems appropriate.
Respectfully submitted,
_________________, Plaintiff, Pro Se
Christine A Jubic
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
VERIFICATION
STATE OF NEW YORK
COUNTRY OF RENSSELAER
In the Matter of ; Case#_________
Jubic v. Salazar, et. al.,
I, Christine A. Jubic, am the pro se plaintiff in the above mentioned case, and do hereby swear, in lieu of Notary Public and under threat of penalty of perjury, I do attest;
That I am the author of the enclosed motion and complaint and that I have read and understand its contents and to the best of my own knowledge and belief, believe them to be true.
I bring this law suit not with the intention to harass or annoy, but in efforts to address important questions of law that should be reviewed by this Court.
Signed this 29, day of September, 2009
_______________________________
Christine A. Jubic, Plaintiff, Pro Se
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
---------------Of course, I was hoping the Motion to ReOpen would go back before Judge Huvelle, but alas, no such luck. Here is the latest Decision, rendered by a Judge Freidman;-----------
ORDER
Plaintiff moves to reopen this case dismissed by Order of September 28, 2009, for lack of standing. See accompanying Memorandum Opinion. A Motion for Reconsideration of a final order need not be granted "unless the district court finds that there is an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 Fed. 3d. 1205, 1208 (D.C. Cir. 1996) The motion provides no grounds for vacating the dismissal order. Accordingly, it is by the Court this 16th day of October, 2009,
ORDERED that plaintiffs motion to reopen the case is DENIED.
Dated" Oct 16th, 2009 JUDGE Z. FREIDMAN
US District Court
-------------------------
I got news for Judge Freidman, an Order dismissing an action "without prejudice"
IS NOT a final order - particularly when the issues have not been decided on the merits.....
Dismissal Without Prejudice: A Deadly Trap For the Unwary!
by W. Dudley McCarter1 and Christopher L. Kanzler2
Generally, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, exceptions to this general rule. For example, if the suit is dismissed by the court for failure to state a claim, the dismissal, even though without prejudice, may be a final adjudication. This article will discuss the difficulties for the trial practitioner that are created by this exception to the general rule.
I. General Principles
"A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."3 The trial court "shall freely grant leave to amend" a deficient pleading.4 The trial court "is not required sua sponte to grant leave to amend a deficient pleading" but, instead, a plaintiff must request leave to amend. If a "plaintiff fails to seek leave to amend, . . . the court may assume that he was satisfied with the pleading."5
"[A] party does not have an absolute right to amend pleadings. . . . The denial of an amendment is presumed correct and the burden is on the proponent to show that the trial court palpably and obviously abused its discretion."6 "The purpose for liberally permitting amendments is to permit matters to be pleaded, [that] were overlooked or unknown when the action was originally filed."7
The decision to dismiss a petition with or without prejudice rests within the sound discretion of the trial court.8 When the trial court does not specify its reasons for dismissing a suit, the appellate court will assume that the trial court acted for one of the reasons set forth in the motion to dismiss.9
II. Is a Dismissal Without Prejudice a Final Judgment That Must Be Appealed? Generally, the Answer is "No"
A. Generally, Dismissal Without Prejudice is Not a Final Appealable Judgment
Supreme Court Rule 67.03 states: "Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The general rule is . . . that "a dismissal without prejudice is not a final judgment," and, therefore, cannot be appealed.10 "In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits."11
Further, when a suit is dismissed voluntarily, without prejudice, the trial court has not ruled on the merits of the "plaintiff's cause of action" and the dismissal does not "preclude [the plaintiff] from refiling [the suit] in the same forum." Thus, a dismissal under these circumstances "is not a final judgment from which an appeal may be taken."12 For example, in Doe v. Visionaire Corp., plaintiffs filed their petition using pseudonyms because of their fear of embarrassment and humiliation.13 Defendants filed a motion to dismiss the petition for failure to include plaintiffs' real name in the petition pursuant to Rule 55.02. The trial court granted the motion to dismiss, without prejudice, and ordered plaintiffs to file an amended petition using their real names. The plaintiffs chose not to amend their petition, and instead appealed the trial court's order of dismissal without prejudice.
The Court of Appeals, sua sponte, dismissed the appeal for lack of jurisdiction. The court held that the general rule is that a dismissal without prejudice is not a final appealable judgment; the exception to this general rule (discussed below) did not apply because plaintiffs could refile the same action in the same forum; they just had to use their real names.
B. If a Judgment Does Not Dispose of All Issues and All Parties, and is Not Certified Final for Purposes of Appeal, it is Not a Final, Appealable Judgment
As held in State ex rel. Sullivan v. Roberts,14 "[a]n appealable judgment is one [that] disposes of all issues in the case. . . . If multiple claims are asserted and the court does not adjudicate all claims, the judgment is not final. The issues resolved by the trial court are appealable only if the trial court makes an express determination that there is no just reason for delay of the appeal."15 In Sullivan, the Court of Appeals was without jurisdiction to determine the appeal of the trial court's dismissal of plaintiff's petition because the judgment did not dispose of pending counter-claims, and failed to state that no just reason for delay of the appeal existed.16
"For a judgment to be final and appealable it must dispose of all parties and all issues in the case and leave nothing for future determination."17 In Warren v. Mercantile Bank of St. Louis,18 the trial court granted Mercantile Bank's motion for summary judgment as to all but one count. Later, the trial court granted the bank's motion to dismiss or, in the alternative, motion to make more definite and certain on the only remaining count, and ordered appellants to file a third amended petition as to this remaining count.
Citing Rule 55.27, the Warren court held that "if a motion for a more definite statement 'is granted and the order of the court is not obeyed within ten days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.'" The Court of Appeals held that even though appellant failed to file a third amended petition, the count was "still pending until stricken or dismissed by the trial court." Therefore, all issues and all claims had not been disposed of and the Court of Appeals had no jurisdiction over the appeal because there was no entry of a final judgment.19
C. If an Order or Ruling is Not Denominated "Judgment" and Signed by a Judge, it is Not a Final, Appealable Judgment
A prerequisite to appellate review is that there be a final judgment. If the order of the trial court was not a final judgment, [the appellate] Court lacks jurisdiction and the appeal must be dismissed. . . .20 The requirement that a trial court must "denominate" its final ruling as a "judgment" is not a mere formality. . . .21 [T]he written judgment must be signed by the judge and must be designated "judgment." Whether . . . "judgment" appears . . . at the top of the signed writing, [or] within the body of the writing," or in the docket sheet, it must be clear from the writing that the document or entry is being "called" a "judgment" by the trial court [in order to be appealable].22
III. Exception to General Rule: Involuntary Dismissal, Even Without Prejudice, May be a Final Adjudication of Claims
Under the general rule, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, clear exceptions to this rule. A dismissal without prejudice may operate to preclude the party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum.23
The fact that a judgment is expressly denominated "without prejudice," or is determined to be "without prejudice" under Supreme Court Rule 67.03, does not end the analysis of whether the judgment is final for purposes of appeal as an exception to the general rule.24 Instead, it is necessary to determine whether the judgment amounts "to a mere dismissal of the petition, or [whether it] was . . . a dismissal of the action itself."25
A. Dismissal Without Prejudice for Failure to State a Claim is Final Judgment if Plaintiff Elects Not to Amend and, Instead, Stands on the Petition
Generally, a dismissal without prejudice of a petition for failure to state a claim, "does not preclude a plaintiff from reasserting the claim on new factual allegations."26 This is because
determination has [not] been made that [the] plaintiff has no cause of action and the claim itself has not been dismissed. The rule is consistent with [Supreme Court] Rule 67.01 which permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred.27
However, as discussed below, Supreme Court "Rule 67.01 does not . . . permit the refiling of a petition previously determined not to state a claim" because of the preclusive effect of res judicata.
"[A] dismissal without prejudice may preclude the party from refiling the action for the same cause and may be res judicata of what the judgment actually decided. For example, when a petition is dismissed without prejudice for failure to state a claim and the party elects not to plead further, this amounts to a determination that the plaintiff has no cause of action."28
In Mahoney v. Doerhoff Surgical Services, the Supreme Court stated: "A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided."29
The Court went on to state that:
The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of the dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed. (emphasis added).30
The Court explained that this is an exception to the general rule set forth in Rule 67.03, and "serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides."31
B. When a Prior Suit is Involuntarily Dismissed by the Court, Without Prejudice, on the Defendant's Motion for Failure to State a Claim, Can the Plaintiff File a New Suit on the Same Cause of Action? No, According to Bachman v. Bachman
In Bachman v. Bachman,32 plaintiff filed a malicious prosecution, "abuse of process, invasion of privacy, and civil conspiracy" action against the defendants. "Defendants filed separate motions to dismiss" for failure to "state a claim upon which relief could be granted." The trial court sustained those motions and granted plaintiff 30 days to file an amended petition. Plaintiff filed an amended petition and defendants again filed motions to dismiss. The trial court again sustained the defendants' motions and entered a judgment dismissing the suit without prejudice. Plaintiff did not appeal, but several months later filed a new case with a petition that was nearly identical to the amended petition dismissed in the prior action. Defendants again filed motions to dismiss, contending that the second suit was barred by res judicata. The trial court agreed, sustained defendants' motions to dismiss the second suit, and the Court of Appeals affirmed.
"The dismissal of a petition for failure to state a claim, without prejudice, does not preclude a plaintiff from reasserting the claim on new factual allegations. This is because no determination has been made that plaintiff has no cause of action and the claim itself has not been dismissed."33 "The dismissal without prejudice for failure to state a claim [does, however, prevent] a plaintiff from refiling the action in its original form." "[A] dismissal without prejudice may be 'res judicata' of what the judgment actually decided." In Bachman, the court dismissed the first suit without prejudice on the grounds that the allegations did not state a claim for relief. Because the petition in the second action was, in all material respects, virtually identical to the petition that was previously dismissed in the first action for failure to state a claim, the trial court did not err in dismissing the second action on the grounds that it was barred by res judicata.34
Supreme Court "Rule 67.01 does not . . . permit [the] refiling of a petition previously determined not to state a claim. The preclusive effect of direct estoppel explains why a plaintiff may appeal the dismissal of a petition without prejudice if the plaintiff has elected to stand on the dismissed petition and not to plead further. In that situation, the dismissal is considered a final judgment for purposes of appeal."35
"The granting of a motion to dismiss for failure to state a claim is a final judgment on the merits sufficient to raise the defense of res judicata in a later proceeding."36 "[I]t is immaterial that the wording of the counts has been changed [in a subsequently filed petition] in an apparent attempt to correct the defects in the original pleadings."37 "[T]here is no requirement that the trial judge sua sponte grant leave to amend a deficient pleading."38 In short, where the judgment is denominated without prejudice, but is an involuntary dismissal for failure to state a claim, the judgment is a determination of the merits of the action, not just the petition. An involuntary dismissal on the grounds of failure to state a claim is an exception to the general rule that a dismissal without prejudice is not a final, appealable judgment.
C. Involuntary Dismissal Without Prejudice, on Other Grounds, May Also be a Final, Appealable Judgment
In Mahoney v. Doerhoff Surgical Services,39 the trial court dismissed the plaintiff's medical malpractice suit on the grounds that the plaintiff failed to comply with § 538.255, RSMo, requiring that plaintiff file an affidavit confirming receipt of a health care provider's written opinion of merit regarding the claim. The defendant challenged appellate court jurisdiction on the grounds that the dismissal was without prejudice and, therefore, it was not a final, appealable judgment. The Supreme Court held that the judgment was final and appealable even though it was a dismissal without prejudice.
The dismissal for failure to provide the health care affidavit was a dismissal of the action and not merely the petition; it was a judgment that the action may not continue. When the effect of the order is to dismiss the action and not merely the pleading, then the judgment is final. "The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed.40 Plaintiff did not seek an order for an extension of time to produce the required affidavit, but stood on his petition. It would be futile to put plaintiff to the precondition of filing a new petition.
The trial court granted the defendant's motion to dismiss for lack of personal jurisdiction and dismissed the case, without prejudice, in Chromalloy American v. Elyria Foundry Co.41 Plaintiff appealed and the Supreme Court determined that it was a final and appealable judgment. While noting the general rule that a dismissal without prejudice is not an appealable judgment, the Court recognized that "[a]n appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. The trial court's dismissal had such a practical effect." "[A] dismissal without prejudice that a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken." Here, however, the plaintiff had no such option. To refile the case "would be an exercise in futility. The trial court's dismissal had the effect of terminating [the plaintiff's] claim in the form in which it was cast." "By dismissing the petition on the basis of personal jurisdiction, the trial court implicitly rejected those factual allegations [forming] the basis for [plaintiff's] claim of jurisdiction. This effectively precluded the plaintiff from refiling its claim in Missouri."42
In Carothers v. Carothers,43 the plaintiff filed an action against her former husband for violation of the Missouri Wire Tap Act, §§ 542.400, et seq., RSMo. The trial court granted the defendant's motion to dismiss for failure to state a claim, finding that the husband's use of conversations recorded on a telephone answering machine did not constitute an interception of the communication and that the answering machine was not an electronic device as defined in the act. The trial court's judgment dismissing the plaintiff's petition was silent as to whether the dismissal was with or without prejudice. Thus, under Rule 67.03, the judgment was considered a dismissal without prejudice.
The Court of Appeals found that even though the dismissal was without prejudice, it was a final judgment and, therefore, appealable under the exception to the general rule. Specifically, since the trial "court held that plaintiff's claims were not covered by the statute, the judgment had the practical effect of terminating the litigation brought under the statute." The Court of Appeals reasoned that "[i]t would be futile for plaintiff to reform her petition and re-offer her assertion that defendant violated the Missouri wiretapping statute in the same court. Such facts render the judgment final."44
Similarly, in WEA Crestwood Plaza v. Flamers Charburgers,45 the trial court dismissed a landlord's suit against a tenant without specifying whether the dismissal was with or without prejudice. On the landlord's appeal, the appellate court first addressed, sua sponte, its jurisdiction and found that jurisdiction existed. "Although normally under Rule 67.03 an involuntary dismissal is deemed to be without prejudice unless the court specifies otherwise in its order of dismissal, a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action in the form cast."46 "A dismissal 'without prejudice' for failure to state a claim effectively bars a plaintiff from refiling the action in its original form."47 "Since the trial court granted the tenant's motion to dismiss, which asserted that the landlord failed to state a claim upon which relief [could] be granted, the dismissal [had] the practical effect of terminating the Landlord's action."48
IV. Dismissal Under Rule 67.01 May Have Res Judicata Effect
The doctrine of res judicata "bars a plaintiff from bringing suit if the same cause of action has already been dismissed with prejudice."49
The doctrine of res judicata precludes parties from contesting matters that the parties have had a full and fair opportunity to litigate. The doctrine applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.50
Res judicata "applies not only to points and issues upon which . . . [a judgment was rendered], but [also] to every point belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time" of the litigation.51 A basic principle of res judicata is that a party is barred from bringing the same cause of action, and that a claim based on an alternative legal theory, but growing out of the same facts and filed against the same party, is considered the same cause of action.52
Missouri courts have held that res judicata principles are to be applied to dismissals under Rule 67.01, just as they are applied in cases decided under the common law doctrine itself -- even when the case was previously dismissed without prejudice and without reaching the merits.53
"[A] dismissal with prejudice, assuming that all claims are adjudicated and all parties are accounted for, acts as a bar to any further litigation of the claims therein involved." A dismissal with prejudice finally decides that litigation and is appealable.54
V. Conclusion
In short, a dismissal without prejudice may, under the exceptions to the general rule, preclude a party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. Although it is difficult to ascertain a bright line test for when a dismissal without prejudice has this effect, if the dismissal was voluntary or was an involuntary dismissal for failure to prosecute, the dismissal is not a final judgment. On the other hand, if the dismissal, for example, was involuntary, is denominated a judgment, and is a dismissal for failure to state a claim, it may constitute an adjudication on the merits and is a final judgment even though it may be denominated without prejudice. Thus, trial attorneys cannot always rely solely on the words without prejudice in a judgment to determine whether the judgment is appealable.
Endnotes
1 Mr. McCarter is a principal in the St. Louis firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1975 from the University of Missouri-Columbia. He served as president of The Missouri Bar in 1993-1994.
2 Mr. Kanzler is a senior associate with the firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1994 from St. Louis University.
3 Balke v. Ream, 983 S.W.2d 579 (Mo. App. W.D. 1998).
4 Jordan v. City of Kansas City, 972 S.W.2d 319, 322 (Mo. App. W.D. 1998); Supreme Court Rule 67.06.
5 Id. at 322-23.
6 Jaron Corp. v. Pellet, 866 S.W.2d 897, 902 (Mo. App. S.D.1993).
7 Rhodus v. Wheeler, 927 S.W.2d 433 (Mo. App. W.D. 1996), citing Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).
8 Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).
9 Johnston v. Norrell Health Care, Inc., 835 S.W.2d 565, 567 (Mo. App. E.D. 1992). See also Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793 (Mo. App. E.D. 1996) (where the trial court dismisses an action without stating the grounds, the Court of Appeals will "presume the dismissal was based upon one of the grounds" raised in the defendant's motion to dismiss and will affirm if any such grounds can sustain the trial court's dismissal); Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo. App. E.D. 1996).
10 Waltrip v. Davis, 899 S.W.2d 147 (Mo. App. E.D. 1995).
11 Vernor v. Missouri Board of Probation and Parole, 934 S.W.2d 13, 14 (Mo. App. W.D. 1996).
12 A. L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998).
13 13 S.W.3d 674 (Mo. App. E.D. 2000).
14 948 S.W.2d 709 (Mo. App. E.D. 1997).
15 Id. See also Supreme Court Rule 74.01(b).
16 Id. See also Curators of the University of Missouri v. St. Charles County, 985 S.W.2d 810 (Mo. App. E.D. 1998) (judgment dismissing one count of counterclaim not final until second count was voluntarily dismissed).
17 Warren v. Mercantile Bank of St. Louis, 976 S.W.2d 630 (Mo. App. E.D. 1998), quoting Petersen v. Farberman, 698 S.W.2d 554 (Mo. App. E.D. 1985).
18 976 S.W.2d 630 (Mo. App. E.D. 1998).
19 Id. at 632.
20 City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. 1997), quoting Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) ("[a]n appealable judgment disposes of all issues in the case, leaving nothing for future determination").
21 Id. at 853. See also A.L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998) (memorandum and orders signed by judge not final "judgment").
22 Id.
23 Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc. 1997).
24 See Carothers v. Carothers, 977 S.W.2d 287 (Mo. App. W.D. 1998) citing Chromalloy, 955 S.W.2d at 3.
25 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing White v. Sievers, 221 S.W.2d 118, 122 (Mo. banc 1949).
26 See Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999), citing Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503 (Mo. banc 1991); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996).
27 Id.
28 State ex rel. State of Ill., 920 S.W.2d at 117; Mahoney, 807 S.W.2d at 506. See also Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962) (dismissal without prejudice for failure to state a claim upon which relief can be granted was appealable where plaintiff chose to stand on that petition); Meadows v. Jeffreys, 929 S.W.2d 746 (Mo. App. S.D. 1996) ("[a] dismissal without prejudice for failure to state a claim upon which relief can be granted . . . [can] be tantamount to a determination that a plaintiff has no cause of action, and can result in a final, appealable judgment").
29 807 S.W.2d at 506.
30 Id., citing Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962).
31 Id. citing Healy v. Atchison, Topeka & Santa Fe R.R., 287 S.W.2d 813, 815 (Mo. 1956). In Molasky v. Brown, 720 S.W.2d 412, 415 (Mo. App. W.D. 1986), the Court of Appeals for the Western District expressly found that the trial court's dismissal of plaintiff's petition was not on the grounds of failure to state a claim. Further, the court held that the underlying dismissal was not a final, appealable judgment because it did not dispose of all claims and all parties. Also, see Helms v. American States Ins. Co., 886 S.W.2d 220 (Mo. App. W.D. 1994) (dismissal without prejudice of an insurance petition seeking uninsured motorist benefits was a dismissal of petition and not dismissal of action itself and thus there was no final judgment); Ampleman v. Schweiss, 969 S.W.2d 862 (Mo. App. E.D. 1998) (court held that dismissed action on the grounds of failure to state a claim and sovereign immunity was without prejudice and not a final appealable order).
32 997 S.W.2d 23 (Mo. App. E.D. 1999).
33 Id at 25, citing Mahoney, 807 S.W.2d at 506, and Jones, 920 S.W.2d at 117.
34 Id. at 26.
35 Id., citing Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), Mahoney, 807 S.W.2d at 506 and Jones, 920 S.W.2d at 117.
36 U.S. Fidelity v. Commercial Union, 943 S.W.2d 640, 642 (Mo. banc 1997); Greening v. Klamen, 719 S.W.2d 904, 906 (Mo. App. E.D. 1986).
37 Greening, 719 S.W.2d at 906.
38 Id.
39 807 S.W.2d 503 (Mo. banc 1991).
40 Id. at 506, citing Hasemeier v. Smith, 361 S.W.2d, 697, 699 (Mo. banc 1962) and Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985).
41 955 S.W.2d 1 (Mo. banc 1997).
42 955 S.W.2d at 3.
43 977 S.W.2d 287 (Mo. App. W.D. 1998).
44 Id. at 289, citing Chromalloy Am. Corp. v. Elyria Foundary, 955 S.W.2d 1, 3 (Mo. banc 1997). Another example of a dismissal without prejudice that constitutes a final, appealable order includes a dismissal based on lack of jurisdiction. Siampos v. Blue Cross and Blue Shield of Missouri, 870 S.W.2d 499 (Mo. App. E.D. 1994). See also Stonebarger v. Emerson Electric Co., 668 S.W.2d 187 (Mo. App. E.D. 1984) (dismissal "without prejudice for lack of subject matter jurisdiction" was appealable); Siefert v. Leonhardt, 975 S.W.2d 489 (Mo. App. E.D. 1998) (dismissal without prejudice for lack of standing has res judicata effects and is appealable); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996) (dismissal based on failure to join a party was "an adjudication on the merits" that could be appealed, even though dismissal was without prejudice); City of Chesterfield v. DeShetler Homes, Inc., 938 S.W.2d 671, 673 (Mo. App. E.D. 1997) ("[A]n appeal from . . . a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum."); Davis v. Baylor Univ., 976 S.W.2d 5 (Mo. App. W.D. 1998) (dismissal on grounds that plaintiff had not demonstrated sufficient minimum contacts with Missouri to subject defendant to personal jurisdiction effectively precludes plaintiff from refiling his claim in Missouri and, therefore, it is an appealable judgment).
45 ___ S.W.3d ___ (Mo. App. E.D. 2000).
46 Id., citing Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo. App. E.D. 1999).
47 Id., citing Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999).
48 Id.
49 Williams v. Rape, 990 S.W.2d 55 (Mo. App. W.D. 1999).
50 U.S. Fidelity, 943 S.W.2d at 641, citing State ex rel. Trotter v. Cirtin, 941 S.W.2d 498, 499 (Mo. banc. 1997).
51 King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495 (Mo. banc 1991).
52 Siesta Manor, Inc. v. Community Federal, 716 S.W.2d 835 (Mo. App. E.D. 1986). See King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc 1991) (res judicata "applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time").
53 Vilsick v. Standard Insulations, Inc., 926 S.W.2d 499, 501 (Mo. App. E.D. 1996) (Rule 67.01 "extends res judicata principles to cases dismissed with prejudice and serves as a mechanism to terminate litigation").
54 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing Rule 67.03 and Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo. App. E.D. 1983) (a dismissal with prejudice acts as a bar to any further litigation of the claims involved, assuming that all claims are adjudicated and all parties are accounted for. A dismissal with prejudice finally decides that litigation and is appealable).
http://legal-eaze.blogspot.com/2009/10/dismissal-without-prejudice-deadly-trap.html
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So ah, can ya'all guess at what my next move will be? U got it - A Motion for Reconsideration of the Denial of my Motion to Reopen.....
Stay tuned to this station for the never-ending saga of our attempts to save the Ely Herds and give the Dept of the Ulterior (Motives) the Bureau of Lies and Mismangement their just dues....
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During the course of my research, I learned about such things as The National Environmental Protection Act, Environmental Accessments (EAs) and Environmental Impact Statements (EIS) and Findings of No Significant Impact (FONSI) and The Federal Lands Policy & management Act (FLPMA) and became familiar with such terminologies as "Biodiversity," "Sustainability" and "Multiple Use," etc.
I studied related case law and strangley enough, smak dab in the middle of my research, along about August 5, 2009, a decision on a case "Colorado Wild Horse & Burro Coalition v. BLM" came down from the DC Court indicating that the BLM COULD NOT remove any horses from their rangelands UNLESS they deemed them "excess" before-hand. This is precisely what the Ely District BLM was NOT doing and about which we were about to challange.
The plan was for me to work up a rough draft of a complaint sufficient enough to lay out all of the facts and circumstances of our case, setting forth the issues and arguments and of course, citing the new ruling out of Colorado that would help our own case, or so we thought. The idea was to have something to present to lawyers in hopes of compelling them to take over the case. Time was of the essence here, as the idea was to have the request for an Injunction heard BEFORE the gathers schedualed to commence on August 18, 2009. While we were unable to obtain representation at this time, we did find a huge pocket of support from law-folk, wild horse advocates and laymen alike, who all helped in whatever capacity they could. However, we were unable for a variety of reasons to compel any lawyer or firm to take the lead and litigate the case for us. It looked like the fastest way to get it into the Courts was for me to do a "Poor Perons" Pro Se thing, and that is what I reluctantly did. There was some question about my "standing" to sue. Long Story short cause there was alot transpired before hand,...this is the Complaint I eventually submitted to the DC Court on or about Sept 28, 2009;
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UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Christine A. Jubic,
Plaintiff,
COMPLAINT AND v. PRAYER FOR RELIEF
THE UNITED STATES OF AMERICA, Case# _____
Jury Trial Demanded
Ken Salazar, Secretary of the U.S. Dept. of the Interior,
Mr. Robert Abbey, National Director, U.S. Bureau of Land Management,
Rosemary Thomas, District Manager, Ely Office of the U.S. Bureau of Land Management,
Defendants.
NATURE OF ACTION
This Complaint is an action for declaratory judgment seeking an emergency preliminary injunction and temporary restraining order, as well as seeking redress for violation of several administrative rules, federal statutes and of U.S. Constitutional provisions.
2. The complaint is a challenge to the decision and actions of the BLM in their plan to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (Lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands, deeming it as no longer suitable for the grazing of wild horses while still allowing for the grazing of privately owned cattle, big game and Off-Road Vehicle (ORV) use. These wild free-roaming horse herds, or rather, what is left of them, currently and lawfully occupy public lands that were statutorily designated "principally” for their use under the Wild Free-Roaming Horses and Burros Act (“WFHBA” or “Act”), 16 U.S.C. § 1331, et seq.
JURISDICTION AND VENUE
3. This case concerns a federal question and, therefore, jurisdiction is proper under 28 U.S.C. § 1331. Venue is also proper under 28 U.S.C. § 1391(e). This Court may review defendants’ actions and order appropriate relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq.
PLAINTIFF
4. Plaintiff Jubic submits that her love affair with the Ely District Herds began in the early 1980’s when she was a resident of the state of Nevada, residing at various times in Nye, Lincoln and Clark Counties. She became involved in the movement to preserve Nevada’s wild horses when articles began to appear in the Nevada newspapers about the mystery of the Leo Heil will monies. Mr. Heil was a California resident who so loved Nevada’s wild horses that he left a small fortune to them in his will designated to the State of Nevada for their preservation in the wild. However, the use of these funds has been very questionable and there is little evidence that Nevada’s wild horses have benefited in any way from the monies bequeathed to them in the Leo Heil Will. Plaintiff Jubic was so affected and moved by the story of Mr. Heil's efforts to protect Nevada’s wild horses, that she wrote an article about this that appeared in the Las Vegas Review Journal. Ever since that time, Plaintiff has had a close affinity with Nevada’s wild horse herds, particularly for the BLM Ely District herds, as these are the ones she lived closest to and personally observed. Plaintiff Jubic enjoyed watching these particular herds not only as a resident Nevadan but, later, as an out-of-state visitor also. Plaintiff Jubic currently resides outside of the State of Nevada but, because of her love for the Ely Herds, she is planning on re-visiting them sometime again in the future "before she dies." Plaintiff has passionately committed herself to the preservation of the Ely District Herds and has long ago made a promise to herself to do so, not only for her love of these wild horse herds, but for the memory of and in fulfillment of the last wishes of Mr. Leo Heil, for their wishes are one and the same: the proper management and preservation of Nevada’s Wild Horse Herds in the wild. In efforts to further her goal of helping wild horses, several years ago, plaintiff created a website called “Save Our Wild Horses” and can be viewed at http://www.freewebs.com/saveourwildhorses. Plaintiff Jubics “Friends of Equines” website can be viewed at http://www.freewebs.com/friendsofequines.
DEFENDANTS
5. The United States of America (USA) is the country of origin of the decision and actions as occurred or occurring and complained of in this case, and is responsible for the creation of administrative bodies such as the defendants herein represent, and is also responsible for the full and fair administration of its laws within its jurisdictional boundaries.
6. The United States Department of the Interior (DOI), is a branch of the United States Government charged with the responsibility of overseeing the operations on the Bureau of Land Management (BLM).
7. Ken Salazar is named as a Defendant herein, as Secretary of the Department of the Interior.
8. The United States Bureau of Land Management (BLM), is a branch of the United States Government charged with the protection and management of America’s wild free-roaming horses and burros .
9. Mr. Robert Abbey, is named as a defendant herein as Director of the Bureau of Land Management.
10. The United States Bureau of Land Management, Ely District Office, is a branch of the United States Government charged with the protection and management of America’s wild free-roaming equines. It is also the Distinct Office in charge of the removals challenged in this complaint.
11. Rosemary Thomas is named as a defendant herein as Manager of the Ely District Office of the BLM in the state of Nevada.
HISTORICAL BACKGROUND
12. Following the passage of the WFHBA, the BLM delineated the Seaman, and White River Herd Areas (HAs,) as lands upon which wild horses roamed in 1971. The total acreage of these two HAs combined is approximately 475,100 acres, and was designated by the BLM as “principally“ for wild horse use. Pursuant to the 1986 Egan RMP, 100% of these lands were designated as wild horse herd management areas (HMAs) suitable for long-term management of wild horses. The 1986 Egan RMP also established the “Appropriate Management Level” (“AML” or the number of horses that the HMAs could “sustainably contain”. The AMLs were set at 159 wild horses for the Seaman and 90 for the White River. The HMAs and AMLs were set for the Caliente Complex of Herds at about the same time. Altogether, the Seaman, White River and Caliente Complex make up eleven (11) separate and distinct herds.
13. In 2008, the Approved Ely District Resource Management Plan (RMP) reset the AMLs for all eleven (11) of these herds at “0”, and dropped the HMA status of the 1.4 million acres, and returned it to HA status as suitable for cattle, sheep and wildlife grazing only. The Ely RMP suggested removal of 100% of the wild horse herds in these areas, citing at pg. 2 para. 1.1, in relevant part,....“Remove wild horses and drop herd management area status...........“Removal of all wild horses from the Seaman and White River HAs is needed at this time in order to implement this management direction and to prevent further damage to the range resulting from the current overpopulation.” (See Ely Development Plans RMP, Ex. C).
14. It is apparent from this bare-bones allegation in Ely RMP that the planners, as well as the BLM, would have us believe that the ranges are being damaged due only to an overpopulation of wild horses. No mention is made in the RMP or any other land-use document prepared for this action, of the various other uses on this land that contribute to rangeland degradation, such as livestock & wildlife grazing which vastly outnumber the wild horses. Nor was any mention made of the off-road vehicle use permitted also upon these lands, or of the plans for expansion of same.
15. More specific but also generalized allegations as to the reasons for the action were given in the Seaman / White River Environmental Assessment and are listed as, “insufficient forage and limited water sources.“ (S/WR EA, pg.4,5, para.1.3, Ex A.) Also noted almost as an aside but perhaps is a more accurate and honest telling of the real reason behind these whole herd removals is the planner’s own admissions that the action is "also needed “ to "make significant progress towards fulfillment of “The Mojave / Southern Great Basin Resource Management Plan, " (M/SGB RMP). The same was stated in the Caliente Complex EA as reason for the zeroing out of the nine (9) Caliente herds (See Caliente EA, pg.1.0, para.1.2, Ex. B).
The Mojave / Southern Great Basin Resource Management Plan (M/SGB RMP)
16. The RMP, as initiated under the provisions of the Southern Nevada Land Management Act and the Eastern Nevada Landscape Restoration Project, is supported by a group of special interest groups organizing themselves under the name of The Eastern Nevada Landscape Restoration Coalition. This coalition consist of several organizations that have traditionally been hostile towards the wild horses as they compete for forage with cattle, sheep, elk, mule deer and big horn sheep. The wild horses also stand in the way their expansion and development plans. The organizations included in the coalition are:
Bighorns Unlimited, Bureau of Land Management, Ducks Unlimited-Nevada, Fraternity of the Desert Bighorn, Friends of Nevada Wilderness, Great Basin National Park, Mule Deer Foundation, Natural Resource Conservation Service, Nevada Cattlemen's Association, Nevada Farm Bureau Federation, Nevada Wool Growers Association, Red Rock Audubon Society, Rocky Mountain Elk Foundation and The Nature Conservancy-Nevada.
17. The overall plan, as set forth in the M/SGB RMP and other various land use documents, is for developments to take place on wild horse rangelands once they are removed. There are plans for expansion of wilderness areas as well as expanded trails for ORVs and other kinds of developments including solar and wind farms and water resource enhancement projects. Lands that are not planned for development will be offered for sale to the general public. (See Ely Development Plans ROD, Ex C).
18. The Plaintiff admits that economic interests are a real and valid concern when developing land management plans, but submits that the law requires that land-management plans and decisions should not be based or decided upon economic factors alone. Plaintiff submits that the relevant law requires a balancing of considerations.
19. The comment period for the Seaman and White River Removals ended on July 6, 2009, and the comment period for the Caliente removals ended on July 15, 2009. Plaintiff vigorously opposed these plans and duly made objections and/or comments as allowed by BLMs administrative laws -- all to no avail.
20. On August 14th, 2009, the final decision and order regarding the Seaman and White River Gathers was issued authorizing the zeroing-out of these two herds and the "de-classification" of their rangelands as no longer suitable for wild horse herd management areas (HMAs). The Order was issued under "full force and effect."
ADMINISTRATIVE APPEAL IS FUTILE
21. On or about August 17th, 2009, Plaintiff did file an administrative appeal and also filed at the same time a petition for a stay of action pending the outcome of her appeal (see "Appeal" attached as Ex.D), but due to the "full force and effect" clause governing administrative appeals, plaintiffs appeal have no effect to prevent these removals. Plaintiff submits that, even in the event of a successful appeal, it would be futile to stop the round-ups. By the time the appeal would be decided, the “whole herd” removals plaintiff seeks to prevent would have already taken place.
22. The effectiveness of a BLM decision to round up and remove wild horses during the pendency of an appeal to the Board of Land Appeals is controlled by 43 C.F.R. §4770.-3(c). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse removal decision into full force and effect, and it "take[s] effect on the date specified, regardless of an appeal."
23. Pursuant to this law, final decisions of the BLM are carried out regardless of any appeal that may be pending. Although this same rule gives the administration broad discretionary power to grant a stay of action pending the outcome of an administrative appeal, to the best of the plaintiff’s own knowledge and belief, such a stay is rarely, if ever, granted in the matter of wild horse removals.
24. The round-ups of the Seaman and White River Herds did commence on Aug. 19, 2009, as scheduled.
25. On September 16, 2009, Plaintiff did receive a decision on her administrative appeal & petition for a stay. The appeal was denied on the grounds that land-management (RMPs) decisions are not reviewable by the Board of Land Appeals, and the Petition for a Stay of Action was denied on the ground of "mootness" in view of the fact that the (Seaman and White River) gathers were commenced and nearly complete. (See Appeal & Decision, Ex.D(a)). Plaintiff submits that the matter of the petition for a stay is not moot as long as a single wild horse or burro remains in any of these endangered herd management areas. Although the gathers for the Seaman and White River Herds has commenced already, plaintiff submits that all horses are rarely, if ever, gathered in the course of one, two, or even three or more round-ups. There are almost always stragglers who evade capture and will have to wait for the next roundup, whenever that will be.
26. Although the final decision for the second-half of the proposed gathers (the Caliente Herds) has not yet been rendered as of the date of the filing of this complaint, the final decision is due to "come down" at any time, and, as indicated in the Caliente EA, (Ex.B). The Caliente gathers are scheduled to commence on Oct. 1st. Plaintiff plans to submit another appeal to the IBLA in the Caliente matter, if necessary, but believes the administrative appeal would be futile even if won, for the same reasons as indicated above.
27. Plaintiff prays the court will find an administrative appeal futile in this case also.
28. The BLM’s interpretation of its authority to zero-out whole herds and take away their historic lands will result in the extermination of all wild horse herds in the Seaman, White River and Caliente Complex and will cause irreparable harm to the plaintiff if immediate action is not taken to prevent it. Because BLM’s challenged actions are contrary to law and will result in irreparable injury to the plaintiff, plaintiff is seeking declaratory and emergency injunctive relief as well as a Temporary Restraining Order.
29. Defendant BLM’s actions, as set forth in greater detail herein, inflict current harm to plaintiff’s procedural and substantive interests in the aesthetic enjoyment and protection of individual wild horses as well as the composite wild horse populations of the Ely District.
STATUTORY AND REGULATORY BACKGROUND GIVING RISE TO
PLAINTIFF’S CAUSES OF ACTION
I. The Wild Free-Roaming Horses and Burros Act
30. Through the WFHBA, Congress found and declared that, “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Upon finding this, Congress stated that its policy was that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of public lands.” 16 U.S.C. § 1331.
31. The BLM and the Forest Service (USFS) have exclusive authority under the WFHBA for the protection of wild horses and burros on the public lands administered by their offices. 16 U.S.C. § 1331(a). The WFHBA requires that BLM’s and USFS’s management activities be at “the minimal feasible level.” Id. According to BLM’s own regulations, BLM must protect wild horses and burros from unauthorized capture, branding, harassment or death and provide these animals with humane care and treatment. 43 C.F.R. § 4700.
32. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands.” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” and are
defined as “the geographic area identified as having been used by a herd as its habitat in 1971.” 43 C.F.R. § 4700.0-5(d).
33. Under the WFHBA, “range” means the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands,” 16 U.S.C. § 1332 (c).
34. The Act requires the Secretary to “protect and manage wild free-roaming horses and burros as components of the public lands . . . . The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. §
1333 (b)(1). The Act also provides that, “Where the Secretary determines . . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).
35. In the Senate Committee report accompanying the bill that became law the Senate noted, “The committee wishes to emphasize that the management of the wild free-roaming horses and burros be kept to a minimum both from the aspect of reducing costs of such a program as well as to deter the possibility of ‘zoo like’ developments.” S. Rep. 92-242, 92nd Cong., 1st Sess. 1971 at 2152. “An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve . . . leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man.” Id.
II. National Environmental Policy Act
36. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., any major federal actions that significantly affects the quality of the human environment requires the preparation of an EIS. NEPA §102(2) (C). The language
and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by consideration of a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.
37. Agencies may decide instead of preparing an EIS, to prepare an EA first. An EA serves three purposes: it assists in agency’s decision-making on whether to prepare an EIS or Finding of No Significant Impact (“FONSI”); it independently ensures compliance with NEPA even when no EIS is required; and it facilitates the preparation of an EIS if one is required. 40 C.F.R. § 1508.9(a) (2007).
38. In an EA, NEPA requires BLM to analyze alternatives which involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii).
39. Although an EA is a “concise public document,” it must include a discussion of the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives and a listing of the persons and agencies consulted. 40 C.F.R. §§ 1508.9(a), 1508.9(b).
40. An EA’s FONSI is only considered adequate if the agency took a “hard look” at the problem, the agency identified the relevant areas of environmental concern, the agency made a convincing case that the environmental impacts were insignificant as to the problems studied and identified; and if there were significant impacts, the agency convincingly established changes that reduced the impacts to a minimum.
41. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, require that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments.
42. An EA may contain mitigation measures to avoid significant impacts that would otherwise require the preparation of an EIS. BLM regulations require that an EA must identify and analyze mitigation measures that may be taken to avoid or reduce environmental harm.
43. An EA serves an important statutory purpose beyond being an initial step toward the preparation of an EIS or a FONSI. Independent of this requirement, an EA must discuss, in adequate detail, a reasonable range of alternatives.
44. An agency must take a “hard look” at the alternatives and the environmental impacts of each. An agency must consider a full range of alternatives that cover a full spectrum of possibilities and demonstrate reasoned decision-making. It must also give a reasoned explanation for rejecting each alternative.
45. BLM regulations also require that a No-Action alternative be analyzed at the same level of detail as the proposed action.
III. Federal Land Policy Management Act
46. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
47. FLPMA requires that the public lands planning process be accomplished through land use plans, FLPMA § 202(a). FLPMA recognizes, however, that a land use plan does not trump the statutory command of other laws, such as the WFHBA, which requires BLM to consider wild horses as an integral part of the public lands, FLPMA § 102(b), and mandates that BLM provide wild horses and burros specific protection. (Emphasis added.)
48. BLM’s failure to provide for a multiple use of the land including wild free-roaming horses is contrary to this provision of FLPMA.
IV. The Administrative Procedure Act
49. The APA provides that "final agency action for which there is no other adequate remedy in a court is subject to judicial review." 5 USC ss. 704. Because NEPA, the WFHBA and the U.S. Department of Hearing & Appeals do not provide private rights of actions to land-use plans, the Plaintiff relies upon the APA to bring these claims. "... To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall:
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556, 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
GENERAL ALLEGATIONS
BLMs allegations of "overpopulation" and their decision to categorize and remove entire herds as "excess" horses
50. Defendant BLM alleges that 620 horses are overpopulating on over one million acres of land. An overpopulation is considered a number of animals in excess of what the carrying capacity of the land can sustainably hold. BLM defines Carrying Capacity as;
"The maximum stocking rate possible without damaging vegetation or related resources. Carrying capacity may vary from year to year on the same area due to fluctuating forage production."
51. The methods used in determining if an overpopulation exists are set out in 16 U.S.C. ss. 1333 (b)(2) of the WFHBA;
"The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. § 1333 (b)(1) The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” (Emphasis' added.)
52. Plaintiff does not dispute the power of the BLM to remove “excess” horses from a herd or a range, or to conduct removals of whole herds in emergency situations such as fire or drought. What is disputed by the plaintiff is the BLM’s conducting "whole herds" removals under the guise of removing “excess” horses. By the BLM’s own standards, rules and guidelines, “excess” horses are those number of horses that have exceeded the (AML) number set for that particular HMA.
53. An “AML” is the BLM’s idea of the maximum number in any given herd that can graze the area sustainably. Presumably, any number of horses exceeding the number set for the “AML” would be deemed “excess” horses and therefore, those number of horses over and above the set limit for the AML could be deemed as "excess" as they are in numbers over and above the allowable number set for that particular HMA.
Plaintiffs submit that "0" is not an appropriate management level for any HMA in less than emergency situations.
54. The AML for Seaman Range was set at 159, and the current number of herd members for the Seaman Herd is 182. Elementary math and a basic understanding of the English Language will show that the excess number of horses (that number exceeding the number set for the “AML”) on the Seaman Range is 23 horses,.....not all 159.
55. The AML for the White River Herd was set at 90 and the current number is counted at 168. Elementary math and a basic understanding of the English Language will again show that the excess number of horses on the White River Range is 78, ....not all 168.
56. A recent ruling in this court addressed the issue of “whole herd” removals and concluded that the BLM did not have the authority to remove any horses from their historic rangelands unless they were deemed “excess” or removed due to emergency conditions. The court declined to answer as to whether the zeroing-out of whole herds could be considered as a removal of excess horses. (See Colorado Wild Horse & Burro Coalition, et. al., v. Salazar, et. al., Case # 1:06-cv-01609, ( DC District Ct., (Hon.RMC) decided August 5th., 2009) so the question here presented remains ripe for review. The Defendant BLM in the Colorado case initially took the position that the"whole herds" scheduled for removal were “excess animals.” (In Defs.’ Memorandum at 21.) However, the Defendants conceded the point that they were not by abandoning it at oral argument. (See Tr. at 6-7.)
57. Plaintiff submits that there is no authority either in statutory or administrative law that authorizes removal of whole herds from their historic rangelands in less than emergency situations, and that whole herd removals cannot and should not be allowed to occur under the guise of the BLM’s claim of “removal of excess horses.” It is a far stretch for any reasonable mind to imagine that the eradication of whole herds
could in any way be construed as a removal of that herd’s excessive numbers, since all of its numbers will have been removed.”
58. The BLM is authorized to remove only herd-members in excess of the numbers set in the AML, or whole herds in cases of emergencies. Since there has been no claim by the BLM of an emergency situation, by "zeroing out" whole herds and taking away their historic rangelands, the BLM is running afoul not only its own laws, rules, regulations, guidelines and mandates to protect wild horses on their historic rangelands, but of the applicable statutory laws as well.
The BLMs Claim of Insufficient Forage & Limited Water Supply
(a) Insufficient Forage
59. Claims are based on "bare bones" allegations as to "insufficient forage" with no specific information given as to how the determination was arrived at or as to what type of forage is deficient and where, except for mentioned as near water holes which are shared by grazing cattle that vastly outnumber the wild horses. Moreover, BLM states in the respective EAs that there are no current rangeland studies available for these particular HMAs, but also states that studies are in progress and when complete, "adjustments will be made to the plan, if needed" based upon the findings of the studies. Plaintiff submits that this is a bit like putting the cart before the horse or closing the barn door after the horse has run out. The question begs asking: Why not wait until the rangeland studies are complete before taking action on such a drastic and extreme plan if there is no emergency?
60. Plaintiff submits that it is arbitrary and capricious to remove whole herds of wild horses prior to the completion of any rangeland studies that would validate or dispel defendants allegations that the rangelands are unsuitable for wild horse grazing but suitable for privately owned cows. The Defendant Ely District BLM renewed all grazing permits upon these same lands for the year 2009. Moreover, the indications on some of these permits are that the allotments are in "satisfactory" condition or are "meeting standards." (See Grazing Permit Renewals, Ex.E).
(b) Limited Water Supply
61. Water sources in arid regions are always “limited.” However, the Ely / Lincoln County Districts of Nevada have the largest water supply in the whole of the state with numerous streams, wells, rivers and creeks. Furthermore, there are plans for a great expansion for increased water sources for the entire state of Nevada as is part of the development plans for this area . (See "Ely District Development Plans, ROD Ex.C). See also Notice of Availability of the Final Environmental Impact Statement for the Lincoln County Land Act Groundwater Development and Utility Right-of-Way Project, Nevada
62. lso as a result of the development plans, wildlife areas are being expanded with plans to put water "guzzers" in place so that the wild deer and elk will have water. Plaintiff submits that the defendants have a duty to provide for or allow access to same for our Nation’s wild horse herds. Plaintiff argues that the problem is not a lack of water sources but a lack of water rights. Nevada is a state that claims rights to all the waters and water sources within the state and, in fact, has been involved with much litigation with the BLM on this matter. A great part of the water problems on federal lands is owing to the fact that more grazing permits than ever are being retired. When that happens, the ranchers, who claim the water rights based upon state law “custom and usage,” shut off their "guzzlers" and other water supplies to the lands as they are no longer needed for their cows. As a consequence, the wild horses are forced to travel further in search of water, sometimes crossing invisible jurisdictional lines and getting themselves into trouble and danger of being shot by the ranchers as “strays.”.
63. There is no doubt that acquiring access to Nevadas waters is a legal, not a geographic problem or based on insufficiencies. Plaintiff submits that despite the difficulties and legalities involved in achieving water rights in Nevada, the BLM nevertheless has a duty to see to it that adequate water is available for the wild horses that roam within their various HMAs. Plaintiff further submits that the defendants have failed in that duty;
"It is BLM policy to conform with applicable state laws and administrative claims procedures for water rights when managing and administering all BLM programs and projects, except as otherwise specifically mandated by Congress. The State Engineer Office in the Division of Water Resources of the Nevada Department of Conservation and Natural Resources, administers water rights programs in Nevada based on beneficial use and the Doctrine of Prior Appropriation. The State of Nevada regulates its water rights programs using guidance in chapters 533 and 534 of the Nevada Revised Statutes. The BLM will acquire and perfect water rights necessary for public land management purposes according to these state laws and procedures. (Emphasis added.) The BLM also will protect existing water rights of the U.S. by protesting or providing comment during the state permitting process on applications for new water rights or for changes to existing water rights that may interfere with BLM’s ability to utilize such water for public land management purposes."
"http://www.blm.gov/pgdata/etc/medialib/blm/nv/field_offices/ely_field_office/ely_resource_management/rmppdftext.Par.1543.File.dat/04%20-%20ELY%20PRMP%202007%20Chapter%202.pdf"
BLM’s Failure to Consider other factors and permitted activities that contribute to rangeland degradation renders the whole assessment process as unreliable and erroneous
64. In both the Seaman / White River and Caliente Complex EAs, there is no mention of any other factors or permitted activities upon the same lands that contribute to rangeland degradation. There is no mention of the privately owned cattle and sheep that graze these same lands and outnumber the wild horses at a ratio of approximately 150- to-1. Nor is there any mention of the wildlife that graze there, such as big horn sheep, elk, and mule deer that outnumber the wild horses at a ratio of 3-to-1. Additionally, there is no mentionof the ORV use that is also permitted upon these same lands.
65. A Report by the Ecological Society of America entitled "Quantile Regression Reveals Hidden Bias and Uncertainty in Habitat Models," finds, when compiling statistical models for animals and/or ecological land management, ... "...Any important factor that is not explicitly included as a parameter in a statistical model is implicitly included as a part of the error distribution. When those unmeasured factors interact with the measured factors, the error distribution will be heterogeneous with respect to the variable included in the model. This creates a form of hidden bias." (Emphsis added)
66. Plaintiff submits that there is hidden bias in the EAs that fail to report any other activity upon these lands that contributes to rangeland conditions, and as such, should render the whole assessment as incomplete and unreliable for use as a basis for the removals.
Failure of proof that wild horses are to blame for rangeland degradation
67. Paragraphs (64) through (66) incorporated by reference herein.
BLM’s failure to consider a "full range" of alternative actions
68. In both the Seaman / White River and Caliente Complex EAs, under the "Alternative Actions" section, there is only one "alternative action" listed and that is a "no action" one. Plaintiffs submit that a "no action" plan offers no real alternative and does not meet the requirements of law mandating that a "full range" of alternative actions be considered. Plaintiffs suggest that there are numerous other alternatives that should have been offered for consideration, including but not limited to:
(a) Removal of only part of the herds.
(b) Adjustment in grazing permits as allowed for and in fact encouraged by law in
cases of conflicting resources:
(i) It has been clearly established through CFR 4710.5, that wild horse and burro preservation within their designated critical habitats is of higher priority than continuing livestock authorizations, as BLM is required to consider all options and alternatives to protect their habitat first. CFR 4710.5 states: "If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock."
(c) Adjustments in grazing practices such as "targeted" grazing. Targeted livestock grazing is a low-cost, low-energy input tool for manipulating and improving the species composition, yield, accessibility, nutritive quality, cover, structure, or diversity of vegetation in ways that favor wildlife.
(d) Restorative Measures such as the BLM is obligated to do when rangeland becomes so degraded it can no longer support the domestic and wild life that graze upon it, i.e.: fencing off of most damaged areas, rotating grazing areas, seeding, the installation of "guzzlers." ... etc.
69. Moreover, 43CFR1610.4-5 PUBLIC LANDS "Resource Management Planning, Formulation of Alternatives," states "All reasonable resource management alternatives shall be considered and several complete alternatives developed for detailed study. The alternatives developed shall reflect the variety of issues and guidance applicable to the resource uses. In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, all reasonable variations shall be treated as subalternatives. One alternative shall be for no action, which means continuation of present level or systems of resource use. The plan shall note any alternatives identified and eliminated from detailed study and shall briefly discuss the reasons for their elimination."
BLM’s Failure to Address Unresolved Conflicts
70. NEPA requires BLM to analyze in an EA alternatives that involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii). Contrary to this provision, the Defendant BLM
ignored plaintiffs objections to their plan of whole herd removals as well as the objections and concerns of other wild-horse advocates and some of the locals also. There was no attempt whatsoever by the defendants to resolve the objections or to mitigate the harm the objectors claimed they would incur as a result of the BLM’s actions.
FIRST CAUSE OF ACTION
VIOLATION OF THE WILD FREE-ROAMING HORSES AND BURROS ACT
(i) The BLM’s policy of “zeroing-out” whole herds and the taking away of their historic lands in less than emergency situations is contrary to the provisions of the WFHBA as well as to the legislative intent of the Act
The Act
71. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands,” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” (HAs) and are defined as “the geographic area identified as having been used by a herd as its habitat in 1971,” 43 C.F.R. § 4710.3-1.
72. The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals, determine appropriate management levels and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels), 16 U.S.C. § 1333 (b)(1). The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).(Emphasis added.)
73. Plaintiff does not dispute that the BLM has broad discretionary powers when it comes to its management decisions regarding wild horses and burros. Nor does she dispute the authority of the BLM to remove truly “excess” animals or even whole herds in emergency situations such as drought or fire. However, since the BLM is not claiming that any emergency situation exists within these lands that would serve as a legitimate basis for these “whole herd” removals, the plaintiff does herein allege that these “whole herd” removals and the permanent taking away of their historic rangelands is contrary to the provisions of the Act that mandates that wild horses herds be protected ‘upon the lands in which they lived’ at the time of the passage of the Act. Plaintiffs submit that “0” is not an appropriate management level for wild horse management areas in LESS THAN emergency situations, and that the BLM’s actions to zero out whole herds is contrary to the provisions of the Act.
(ii)The BLM’s policies and practices of “zeroing-out” entire herds of wild horses and the taking away of their historic rangelands is contrary to and nullifies core provisions of the WFHBA and, therefore, is an impermissible delegation unto itself of the lawmaking powers of the legislature, and, as such, violates the United States Constitution (Art.1)
74. Plaintiff does not dispute the broad discretionary power the legislature allows the BLM in making administrative decisions on how best to manage the Wild Horse and Burro Program. Plaintiff does however, submit that in so making the relevant decisions, same must conform with the “core” of the legislative intent of the act. Plaintiff submits that the core of the legislative intent of the WFHBA is to preserve and protect wild horses and burros upon the lands they are known to have lived and roamed in 1971.
75. BLM’s actions and decisions in "zeroing-out” entire herds of wild horses and taking away their historic rangelands nullify significant and integral portions of the WFHBA. In so doing, plaintiff submits that the defendants are impermissibly and unconstitutionally delegating unto themselves the lawmaking powers reserved solely for the United States Legislative branch of government. (U.S. Constitution, Art. 1)
76. In Krause v. Dept. of Employment Services, DC Ct. of Appeals, No. 02-AA-725, the ruling in regards to administrative powers was: "This court defers to an agency's interpretation of the statute it administers, so long as that interpretation is reasonable and consistent with the statutory language." Citing, Franklin, 709 A.2d @ 1176. "A qualifier to the rule of deference is that a court may reasonably expect such agency’s interpretations to be supported by appropriate analysis and consideration," citing Munson v. District of Columbia Dept. of Employment Servs., 71 A. 2d 623, 626-27 (D.C. 1998) Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d. 896, 899-902 (D.C.1995).
77. The BLM’s interpretation of the WFHBA and of their determination that whole herds can be zeroed-out and removed from their historic rangelands is contrary to the statutory language of the WHFBA that mandates that they be protected upon their historic lands. The nullification of the WFHBA by the BLM should not be allowed to continue.
SECOND CAUSE OF ACTION
Violation of the National Environmental Protection Act
Failure of the EAs to be objective and to not reflect subjective value judgments
78. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, requires that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments. (Emphasis added.)
79. Plaintiff submits that the BLM’s analysis was not based on the best available information as crucial information was withheld regarding other uses of the land that also contribute to rangeland degradation among other problems, and that the information thus provided was not objective and reflects the BLM’s subjective and traditionally negative value judgments concerning its obligation to properly manage our country’s wild horses and burros. It is no secret that the BLM and the ranchers are no friends of the wild horses and burros.
80. Paragraphs (64) through (66 ) are herein incorporated by reference. Plaintiff disputes the BLM’s FONSI and submits that the action is a significant federal action and requires the filing of an Environmental Impact Statement.
81. The Interior Board of Land Appeals (IBLA) has held that "a party challenging BLM’s FONSI has the burden of demonstrating with objective proof that the FONSI is based on a clear error of law or demonstrable error of fact, or that the BLM failed to consider a substantial environmental question of significance to the proposed action, or otherwise failed to abide by section 102(2)(C) of NEPA." Biodiversity Conservation Alliance et. el., 171 IBLA 218, 226 (2007).
82. Plaintiff submits that she has met her burden of demonstrating with objective proof that the FONSI is based on clear error of law and demonstrable error of fact, and that the BLM did fail to consider a substantial environmental question of significance to the action, (i.e., the other uses of the land) and otherwise failed to abide by section 102(2)(C) of NEPA.
83. BLM’s finding of no significant impact is in error and necessitates the preparation of an EIS. BLM’s DR is a major federal action approved contrary to NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations. BLM failed to take the requisite hard look at the foreseeable consequences of its actions. BLM failures to comply fully with NEPA and its regulations have been arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, thereby subject to reversal under the APA.
THIRD CAUSE OF ACTION
VIOLATION OF FEDERAL LAND MANAGEMENT ACT
84. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq. FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
85. Plaintiff submits that by eradicating whole herds of horses from Seaman, White River and Caliente Complex Herds and by taking away their historic rangelands is not consistent with the multiple use purpose of the FLMA.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
Failure to Notify the U.S. Congress and the Senate as Required by Statutory Law Violates the Due Process Clause of the U.S. Constitution (Art. XIV)
86. FLMA (2) provides:
"Any management decision or action pursuant to a management decision that excludes (that is, totally eliminates) one or more of the principal or major uses for two or more years with respect to a tract of land of one hundred thousand acres or more shall be reported by the Secretary to the House of Representatives and the Senate. If within ninety days from the giving of such notice (exclusive of days on which either House has adjourned for more than three consecutive days), the Congress adopts a concurrent resolution of non-approval of the management decision or action, then the management decision or action shall be promptly terminated by the Secretary. If the committee to which a resolution has been referred during the said ninety day period, has not reported it at the end of thirty calendar days after its referral, it shall be in order to either discharge the commit-tee from further consideration of such resolution or to discharge the committee from consideration of any other resolution with respect to the management decision or action. "
87. Plaintiff has diligently tried to obtain information as to whether or not the defendants complied with this provision of law, but to no avail. Phone calls to the clerk of the House of Representatives indicate there is no record of any notice being filed in regard to Nevada’s wild horse removals.
88. The total number of acres that will no longer be used as wild horse rangeland is 1.4 million. Even if not counting the cumulative numbers, many of the individual HMAs have well over the prerequisite 100,000 acres necessary to effect this law.
89. Plaintiff submits that the defendant’s failure to give notice as required under the provisions of this law is a violation of due process as guaranteed by the 14th Amendment to the United States Constitution.
PRAYERS FOR RELIEF
WHEREFORE, plaintiff respectfully requests that this Court enter judgment in favor of plaintiff and grant the following relief:
Issue a declaratory judgment that:
1. Defendants have exceeded their legal authority and abused their discretion in making the determination to remove whole herds from the historic and legally sanctioned and protected rangelands in less than emergency situations.
2. Defendants decisions are arbitrary and capricious in that they were based on incomplete data in EAs as contained no information as to other causes of rangeland degradation and no "reasonable range" of alternatives.
3. Issue a Preliminary Injunction and/or Temporary Restraining Order demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed.
4. That Defendants actions and policies of “zeroing-out” whole herds of wild horses and removing them from their historic rangelands in less than emergency situations violates the provisions of the WFHBA.
5. That defendants actions and policies are contrary to and in fact nullify core provisions of the WFHBA and as such, is an impermissible delegation onto itself of the lawmaking (and breaking) powers reserved for the legislature. (U.S. Constitution, Art.1)
6. Declare that the defendants failure to report the action to the House of Representatives and the Senate as required by law is a violation of the due process clause of the U.S. Constitution. (Am. 14)
7. Award plaintiff costs and expenses related to the prosecution of this case.
8. Award plaintiffs such other relief as the Court deems appropriate.
Respectfully submitted,
_________________, Plaintiff, Pro Se
Christine A Jubic
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
VERIFICATION
STATE OF NEW YORK
COUNTRY OF RENSSELAER
In the Matter of ; Case#_________
Jubic v. Salazar, et. al.,
I, Christine A. Jubic, am the pro se plaintiff in the above mentioned case, and do hereby swear, in lieu of Notary Public and under threat of penalty of perjury, I do attest;
That I am the author of the enclosed complaint and that I have read and understand its contents and to the best of my own knowledge and belief, believe them to be true.
I bring this law suit not with the intention to harass or annoy, but in efforts to address important questions of law that should be reviewed by this Court.
Signed this 16th day of September, 2009
_______________________________
Christine A. Jubic, Plaintiff, Pro Se
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
-------The Decision, Rendered September 23, 2009 - Case # 09-cv-1842
Judge Ellen S. Huvelle;
MEMORANDUM OPINION
"The matter before the Court on plaintiffs application to proceed in forma pauperis, her pro se complaint, and her motion for preliminary injunction and a temporary restraining order. For the reasons stated below, the Court will grant the application, deny her motion for injunctive relief and dismiss the complaint.
Plaintiff, who lives in Johnsonville, New York, brings this action to challange "the decisions and actions of the (Bureau of Land Management) to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands." She states that "her love affair with the Ely District Herds began in early 1980s when she was a resident of the state of Nevada, residing at various times in Nye, Lincoln and Clark Counties. Although plaintiff "currently resides outside the state of Nevada,...she is planning on revisiting them sometime again in the future "before she dies."
Generally, plaintiff alleges that the Bureau of Land Management has violated the Wild Free-roaming Horses and Burros Act, the National Environmental Policy Act, the Federal Land Policy Management Act, the Administrative Procedures Act, and the Due Process Clause of the Fourteenth Amendment, in approving a plan to remove all wild horse herds from certain lands in Nevada. She demands a declaritory judgment and injunctive relief "demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed."
Article III of the United States Constitution limits the jurisdictional power to deciding "cases and controversies." In re Navy Chaplaincy, 534 F. 3d 756 (D.C. Cir) (quoting US Constit. Art. III sec. 2, cert denied, ___US____, 129 S. Ct. 1918 (2008). A party has standing for purposes of Article III if her claims "spring from an injury in fact" - an invasion of a legally protected interest that is "concrete and particularized," "actual or imminent" and "fairly traceable" to the challanged act of the defendant, and likely to be redressed by a favorable decision in the federal court." Navegar , Inc. v. US, 103 F.3d 994, 998 (D.C. Cir. 1997) (quoting Lujan v. Defenders of Wildlife, 504 US 555, 560-61 (1992)). The Supreme Court has "consistantly held that a plaintiff raising only a generally available grievance about government - claiming only harm to his and every citizens interest in proper application of the Constitution and laws, and seeking relief that no more directly or tangibly benefits him than it does the public at large - does not state in an Article III case of controversy." Lujan v. Defenders of Wildlife, 504 US at 573-74.
Here, plaintiff cannot show that her injuries "spring from an injury in fact." She does not allege a property interest in either the horses or the lands on which the herds have roamed, or the existance if any other interest in or harm she stands to suffer if the BLMs plan takes effect. The Court concludes, then, that plaintiff does not have standing to bring this action. Her complaint will be dismissed, and her motion for injunctive relief will be denied as moot.
An Order consistant with the Memorandum Opinion will be issued seperately on this same date.
September 24, 2009 Ellen S. Huvelle
US District Judge
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DISMISSAL ORDER
For the reasons stated in the accompanying Memrandum Opinion, it is hereby
ORDERED that plaintiffs application to proceed in forma pauperis is GRANTED, it is
FURTHER ORDERED that the plaintiffs motion for a preliminary injunction and a temporary restraining order is DENIED, and it is
FURTHER ORDERED that the complaint in this civil action is DISMISSED WITHOUT PREJUDICE.
This is a final, appealable Order. See Fed. R. App. P. 4(a)
SO ORDERED
September 24, 2009 Ellen Huvelle
US District Judge
-----------The Dismissal
Now as a long-time pro-se litigant, I am familiar with dismissals "without prejudice." Decisions dismissing a cause "without prejudice" is the courts way of leaving the door open for re-submission after deficiencies are corrected. The literal interpertation of "without prejudice" is "with leave to renew." Though it may seem that the judge was saying I did not have standing, what she IN FACT meant was that my argument, as written,....did not give me standing. I knew what the good judge Huvelle wanted me to do,...."beef up" my standing argument and re-submit, ...but how, was the question. Back to the research drawing board...and here is what I found; Pay close attention to the embolded text at the end. This is the case Judge Huvelle cited in her decision dismissing my case "without prejudice," so in other words, she led me to this case;
--------------------
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), was a United States Supreme Court case in which the court held that a group of wildlife conservation and other environmental organizations lacked standing to challenge regulations jointly issued by the U.S. Secretaries of the Interior and Commerce, regarding the geographic area to which a particular section of the Endangered Species Act of 1973 applied.
Said Lily Henning of the Legal Times:
In [this] decision, hailed by the right and attacked by the left as well as by a broad swath of legal scholars, the Court made clear that plaintiffs must suffer a concrete, discernible injury—not a "conjectural or hypothetical one"—to be able to bring suit in federal court. It, in effect, made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don't directly affect them. [1]
Writing for the majority, Justice Scalia stated that Defenders had failed to satisfy Constitutional requirements for “injury in fact” that would grant standing under the Endangered Species Act. He wrote that the Court rejected the view that the citizen suit provision of the statute conferred upon “all persons an abstract, self-contained, non-instrumental ‘right’ to have the Executive observe the procedures required by law”. Rather, he explained, the plaintiff must have suffered a tangible and particular harm, not unlike the requirement in common law.
Justice Scalia has subsequently asserted that a plane ticket to the affected geographic areas would have been enough to satisfy the imminent threat of future injury requirement of City of Los Angeles v. Lyons.
----------How about that? So what is this porr gal to do? Accept that invitation by the wild horse advocates in Nevada to come spend the Christmas Holidays with them so we can view (whats left) of these herds. Here is the "reworked" complaint I submitted back to the court entitled a "Motion to ReOpen the Case"; Basically, the only thing changed is the standing argument as set forth under the title / introduction, "Plaintiff" - so there is no need to re-read the complaint in its entirety as it is the same one as above
_____________________________________________________________________________________
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
Christine A. Jubic, Case# 09-CV-1842
(ESH)
Plaintiff,
MOTION TO RE-OPEN CASE
THE UNITED STATES OF AMERICA, Jury Trial Demanded
Ken Salazar, Secretary of the U.S. Dept. of the Interior,
Mr. Robert Abbey, National Director, U.S. Bureau of Land Management,
Rosemary Thomas, District Manager, Ely Office of the U.S. Bureau of Land Management,
Defendants.
NATURE OF ACTION
This Motion w/ Complaint seeks to re-open the case as mentioned above, that was previously submitted to this Court but was dismissed on September 24, 2009 "without prejudice." The Complaint is for declaratory judgment seeking an emergency preliminary injunction and temporary restraining order, as well as seeking redress for violation of several administrative rules, federal statutes and of U.S. Constitutional provisions.
2. The complaint is a challenge to the decision and actions of the BLM in their plan to "zero-out" (permanently remove) eleven (11) wild horse herds in the Ely District (Lincoln and Nye Counties) Nevada, and to divest them of their statutorily protected rangelands.
LITIGATION HISTORY
2.(a) This Complaint was originally submitted to the Court on or about September 19th, 2009, and at the same time an informa pauperous application was made asking for a waiver of the filing fee.
2.(b) On September 24, 2009, the application for informa paupers was granted and an Index # assigned (09-cv-1842) but the Complaint and Request for Injunction were dismissed "without prejudice." The reasons for the dismissal were plaintiffs failure to allege a property interest in the subject matter (wild horses or the lands) or failed to allege "any other interest in or harm" that she might suffer as a result of the proposed actions of the BLM. It was the courts determination that, absent these allegations in the Complaint, that plaintiff lacked standing to sue. (See Courts Decision & Order, attached as Ex. 1)
2. (c) Wherefore plaintiff respectfully Motions the Court to re-Open the case regarding plaintiffs Complaint and Request for Emergency Injunction upon her setting forth herein the proper criteria in which it is hoped will more fully establish her entitlement to sue.
JURISDICTION AND VENUE
3. This case concerns a federal question and, therefore, jurisdiction is proper under 28 U.S.C. § 1331. Venue is also proper under 28 U.S.C. § 1391(e). This Court may review defendants’ actions and order appropriate relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq.
PLAINTIFF
4. Plaintiff Jubic is a former resident and itinerant worker in the state of Nevada who, throughout the early to mid-1980's spent much of her leisure time traveling around Lincoln, Nye and Clark Counties for the sole purpose of observing the Seaman, White River and Caliente Wild Horse Herds. Plaintiff so enjoyed the esoteric effect of observing these particular herds in their wild and native habitats, that she made a return trip to these areas in 1996 for the sole purpose of observing them again. At the time of her last visit to the Caliente herds, Plaintiff observed and became enamored and bonded with a young red colored foal with "one white stocking and a white "V" on his forehead" that had causiously approached her. Plaintiff affectionately named the young foal "Victor" for the distinct "V" shape on his forehead. Plaintiff did make a promice to this foal that she would return to re-visit him and his herd someday. Eversince that time, despite the necessity of having to relocate herself back to the east-coast, the Plaintiff has been active in Nevadas Wild Horse Preservation Campaign and has in fact established like-minded friends in the Ely District of Nevada who have extended to her an invitation to return to the area over the 2009 Christmas Holidays to view the Seaman, White River and Caliente Herds once again. Nevada resident and fellow wild horse advocate Craig Downer has graciously offered to provide plaintiff travel assistance and quarters in his own home in order to provide the plaintiff an opportunity to view the Seaman, White River and Caliente Herds once again. Plaintiff has accepted the offer and currently has a bus ticket reserved in her name for a December ______, 2009 departure. Plaintiff is looking forward to and has definate plans to stay in Nevada over the 2009 Christmas Holidays for the sole purpose of observing the Seaman, White River and Caliente Herds. (See Affidavit of Craig Downer, submitted by seperate filing to the court on September 29, 2009.)
DEFENDANTS
5. The United States of America (USA) is the country of origin of the decision and actions as occurred or occurring and complained of in this case, and is responsible for the creation of administrative bodies such as the defendants herein represent, and is also responsible for the full and fair administration of its laws within its jurisdictional boundaries.
6. The United States Department of the Interior (DOI), is a branch of the United States Government charged with the responsibility of overseeing the operations on the Bureau of Land Management (BLM).
7. Ken Salazar is named as a Defendant herein, as Secretary of the Department of the Interior.
8. The United States Bureau of Land Management (BLM), is a branch of the United States Government charged with the protection and management of America’s wild free-roaming horses and burros .
9. Mr. Robert Abbey, is named as a defendant herein as Director of the Bureau of Land Management.
10. The United States Bureau of Land Management, Ely District Office, is a branch of the United States Government charged with the protection and management of America’s wild free-roaming equines. It is also the Distinct Office in charge of the removals challenged in this complaint.
11. Rosemary Thomas is named as a defendant herein as Manager of the Ely District Office of the BLM in the state of Nevada.
HISTORICAL BACKGROUND
12. Following the passage of the WFHBA, the BLM delineated the Seaman, and White River Herd Areas (HAs,) as lands upon which wild horses roamed in 1971. The total acreage of these two HAs combined is approximately 475,100 acres, and was designated by the BLM as “principally“ for wild horse use. Pursuant to the 1986 Egan RMP, 100% of these lands were designated as wild horse herd management areas (HMAs) suitable for long-term management of wild horses. The 1986 Egan RMP also established the “Appropriate Management Level” (“AML” or the number of horses that the HMAs could “sustainably contain”. The AMLs were set at 159 wild horses for the Seaman and 90 for the White River. The HMAs and AMLs were set for the Caliente Complex of Herds at about the same time. Altogether, the Seaman, White River and Caliente Complex make up eleven (11) separate and distinct herds.
13. In 2008, the Approved Ely District Resource Management Plan (RMP) reset the AMLs for all eleven (11) of these herds at “0”, and dropped the HMA status of the 1.4 million acres, and returned it to HA status as suitable for cattle, sheep and wildlife grazing only. The Ely RMP suggested removal of 100% of the wild horse herds in these areas, citing at pg. 2 para. 1.1, in relevant part,....“Remove wild horses and drop herd management area status...........“Removal of all wild horses from the Seaman and White River HAs is needed at this time in order to implement this management direction and to prevent further damage to the range resulting from the current overpopulation.” (See Ely Development Plans RMP, Ex. C).
14. It is apparent from this bare-bones allegation in Ely RMP that the planners, as well as the BLM, would have us believe that the ranges are being damaged due only to an overpopulation of wild horses. No mention is made in the RMP or any other land-use document prepared for this action, of the various other uses on this land that contribute to rangeland degradation, such as livestock & wildlife grazing which vastly outnumber the wild horses. Nor was any mention made of the off-road vehicle use permitted also upon these lands, or of the plans for expansion of same.
15. More specific but also generalized allegations as to the reasons for the action were given in the Seaman / White River Environmental Assessment and are listed as, “insufficient forage and limited water sources.“ (S/WR EA, pg.4,5, para.1.3, Ex A.) Also noted almost as an aside but perhaps is a more accurate and honest telling of the real reason behind these whole herd removals is the planner’s own admissions that the action is "also needed “ to "make significant progress towards fulfillment of “The Mojave / Southern Great Basin Resource Management Plan, " (M/SGB RMP). The same was stated in the Caliente Complex EA as reason for the zeroing out of the nine (9) Caliente herds (See Caliente EA, pg.1.0, para.1.2, Ex. B).
The Mojave / Southern Great Basin Resource Management Plan (M/SGB RMP)
16. The RMP, as initiated under the provisions of the Southern Nevada Land Management Act and the Eastern Nevada Landscape Restoration Project, is supported by a group of special interest groups organizing themselves under the name of The Eastern Nevada Landscape Restoration Coalition. This coalition consist of several organizations that have traditionally been hostile towards the wild horses as they compete for forage with cattle, sheep, elk, mule deer and big horn sheep. The wild horses also stand in the way their expansion and development plans. The organizations included in the coalition are:
Bighorns Unlimited, Bureau of Land Management, Ducks Unlimited-Nevada, Fraternity of the Desert Bighorn, Friends of Nevada Wilderness, Great Basin National Park, Mule Deer Foundation, Natural Resource Conservation Service, Nevada Cattlemen's Association, Nevada Farm Bureau Federation, Nevada Wool Growers Association, Red Rock Audubon Society, Rocky Mountain Elk Foundation and The Nature Conservancy-Nevada.
17. The overall plan, as set forth in the M/SGB RMP and other various land use documents, is for developments to take place on wild horse rangelands once they are removed. There are plans for expansion of wilderness areas as well as expanded trails for ORVs and other kinds of developments including solar and wind farms and water resource enhancement projects. Lands that are not planned for development will be offered for sale to the general public. (See Ely Development Plans ROD, Ex C).
18. The Plaintiff admits that economic interests are a real and valid concern when developing land management plans, but submits that the law requires that land-management plans and decisions should not be based or decided upon economic factors alone. Plaintiff submits that the relevant law requires a balancing of considerations.
19. The comment period for the Seaman and White River Removals ended on July 6, 2009, and the comment period for the Caliente removals ended on July 15, 2009. Plaintiff vigorously opposed these plans and duly made objections and/or comments as allowed by BLMs administrative laws -- all to no avail.
20. On August 14th, 2009, the final decision and order regarding the Seaman and White River Gathers was issued authorizing the zeroing-out of these two herds and the "de-classification" of their rangelands as no longer suitable for wild horse herd management areas (HMAs). The Order was issued under "full force and effect."
20.(a) On September 25, 2009, the final decision and order regarding the Caliente Gather was issued authorizing the zeroing out of the nine(9) Caliente Herds.
ADMINISTRATIVE APPEAL IS FUTILE
21. In regards to the Seaman / White River Gathers, on August 17, 2009, plaintiff did file an administrative appeal and also filed at the same time a petition for a stay of action pending the outcome of her appeal (see "S/WR Appeal" attached as Ex.D), but due to the "full force and effect" clause governing administrative appeals, plaintiffs appeal have no effect to prevent these removals. Plaintiff submits that, even in the event of a successful appeal, it would be futile to stop the round-ups. By the time the appeal would be decided, the “whole herd” removals plaintiff seeks to prevent would have already taken place.
22. The effectiveness of a BLM decision to round up and remove wild horses during the pendency of an appeal to the Board of Land Appeals is controlled by 43 C.F.R. §4770.-3(c). Under 43 C.F.R. § 4770.3(c), the authorized officer may opt to place a wild horse removal decision into full force and effect, and it "take[s] effect on the date specified, regardless of an appeal."
23. Pursuant to this law, final decisions of the BLM are carried out regardless of any appeal that may be pending. Although this same rule gives the administration broad discretionary power to grant a stay of action pending the outcome of an administrative appeal, to the best of the plaintiff’s own knowledge and belief, such a stay is rarely, if ever, granted in the matter of wild horse removals.
24. The round-ups of the Seaman and White River Herds did commence on Aug. 19, 2009, as scheduled.
25. On September 16, 2009, Plaintiff did receive a decision on her administrative appeal & petition for a stay in regards to the Seaman / White River Gathers. The appeal was denied on the grounds that land-management (RMPs) decisions are not reviewable by the Board of Land Appeals, and the Petition for a Stay of Action was denied on the ground of "mootness" in view of the fact that the (Seaman and White River) gathers were commenced and nearly complete. (See Appeal & Decision, Ex.D(a)). Plaintiff submits that the matter of the petition for a stay is not moot as long as a single wild horse or burro remains in any of these endangered herd management areas. Although the gathers for the Seaman and White River Herds has commenced already, plaintiff submits that all horses are rarely, if ever, gathered in the course of one, two, or even three or more round-ups. There are almost always stragglers who evade capture and will have to wait for the next roundup, whenever that will be.
26. On September 26, 2009, Plaintiff did file an administrative appeal in regards to the Caliente Gather. Although a decision has yet to be rendered, for the same reasons as indicated above and as with her Seaman, White River Appeal, plaintiff believes the administrative appeal is futile even if won.
27. The Caliente Gathers are schedualed to commence on Oct. 1, 2009.
27 (a) Plaintiff submits that she shares a "property right" to these wild horses and to the historic lands they range upon in that the horses and the lands are the property of the American Public of which she is a member of.
28. The BLM’s interpretation of its authority to zero-out whole herds and take away their historic lands will result in the extermination of all wild horse herds in the Seaman, White River and Caliente Complex and will cause irreparable harm to the plaintiff if immediate action is not taken to prevent it, in that once removed, the wild horses and burros of the Seaman, White River and Caliente Herds will not be there for her to enjoy on her planned future visit to the area over the 2009 Christmas Holiday.
29. Because BLM’s challenged actions are contrary to law and will result in irreparable injury to the plaintiff, plaintiff is seeking declaratory and emergency injunctive relief as well as a Temporary Restraining Order to prevent any further gathers of the wild horses in the Seaman, White River and Caliente herds.
29. Defendant BLM’s actions, as set forth in greater detail herein, inflict current and immediate harm to plaintiff’s procedural and substantive interests in the aesthetic enjoyment and protection of individual wild horses in these resective herds.
STATUTORY AND REGULATORY BACKGROUND GIVING RISE TO
PLAINTIFF’S CAUSES OF ACTION
I. The Wild Free-Roaming Horses and Burros Act
30. Through the WFHBA, Congress found and declared that, “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Upon finding this, Congress stated that its policy was that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of public lands.” 16 U.S.C. § 1331.
31. The BLM and the Forest Service (USFS) have exclusive authority under the WFHBA for the protection of wild horses and burros on the public lands administered by their offices. 16 U.S.C. § 1331(a). The WFHBA requires that BLM’s and USFS’s management activities be at “the minimal feasible level.” Id. According to BLM’s own regulations, BLM must protect wild horses and burros from unauthorized capture, branding, harassment or death and provide these animals with humane care and treatment. 43 C.F.R. § 4700.
32. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands.” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” and are
defined as “the geographic area identified as having been used by a herd as its habitat in 1971.” 43 C.F.R. § 4700.0-5(d).
33. Under the WFHBA, “range” means the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands,” 16 U.S.C. § 1332 (c).
34. The Act requires the Secretary to “protect and manage wild free-roaming horses and burros as components of the public lands . . . . The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”. 16 U.S.C. §
1333 (b)(1). The Act also provides that, “Where the Secretary determines . . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).
35. In the Senate Committee report accompanying the bill that became law the Senate noted, “The committee wishes to emphasize that the management of the wild free-roaming horses and burros be kept to a minimum both from the aspect of reducing costs of such a program as well as to deter the possibility of ‘zoo like’ developments.” S. Rep. 92-242, 92nd Cong., 1st Sess. 1971 at 2152. “An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve . . . leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man.” Id.
II. National Environmental Policy Act
36. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., any major federal actions that significantly affects the quality of the human environment requires the preparation of an EIS. NEPA §102(2) (C). The language
and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by consideration of a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.
37. Agencies may decide instead of preparing an EIS, to prepare an EA first. An EA serves three purposes: it assists in agency’s decision-making on whether to prepare an EIS or Finding of No Significant Impact (“FONSI”); it independently ensures compliance with NEPA even when no EIS is required; and it facilitates the preparation of an EIS if one is required. 40 C.F.R. § 1508.9(a) (2007).
38. In an EA, NEPA requires BLM to analyze alternatives which involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii).
39. Although an EA is a “concise public document,” it must include a discussion of the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives and a listing of the persons and agencies consulted. 40 C.F.R. §§ 1508.9(a), 1508.9(b).
40. An EA’s FONSI is only considered adequate if the agency took a “hard look” at the problem, the agency identified the relevant areas of environmental concern, the agency made a convincing case that the environmental impacts were insignificant as to the problems studied and identified; and if there were significant impacts, the agency convincingly established changes that reduced the impacts to a minimum.
41. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, require that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments.
42. An EA may contain mitigation measures to avoid significant impacts that would otherwise require the preparation of an EIS. BLM regulations require that an EA must identify and analyze mitigation measures that may be taken to avoid or reduce environmental harm.
43. An EA serves an important statutory purpose beyond being an initial step toward the preparation of an EIS or a FONSI. Independent of this requirement, an EA must discuss, in adequate detail, a reasonable range of alternatives.
44. An agency must take a “hard look” at the alternatives and the environmental impacts of each. An agency must consider a full range of alternatives that cover a full spectrum of possibilities and demonstrate reasoned decision-making. It must also give
a reasoned explanation for rejecting each alternative.
45. BLM regulations also require that a No-Action alternative be analyzed at the same level of detail as the proposed action.
III. Federal Land Policy Management Act
46. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq., FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
47. FLPMA requires that the public lands planning process be accomplished through land use plans, FLPMA § 202(a). FLPMA recognizes, however, that a land use plan does not trump the statutory command of other laws, such as the WFHBA, which requires BLM to consider wild horses as an integral part of the public lands, FLPMA § 102(b), and mandates that BLM provide wild horses and burros specific protection. (Emphasis added.)
48. BLM’s failure to provide for a multiple use of the land including wild free-roaming horses is contrary to this provision of FLPMA.
IV. The Administrative Procedure Act
49. The APA provides that "final agency action for which there is no other adequate remedy in a court is subject to judicial review." 5 USC ss. 704. Because NEPA, the WFHBA and the U.S. Department of Hearing & Appeals do not provide private rights of actions to land-use plans, the Plaintiff relies upon the APA to bring these claims. "... To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall:
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be:
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556, 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error."
GENERAL ALLEGATIONS
BLMs allegations of "overpopulation" and their decision to categorize and remove entire herds as "excess" horses
50. Defendant BLM alleges that 620 horses are overpopulating on over one million acres of land. An overpopulation is considered a number of animals in excess of what the carrying capacity of the land can sustainably hold. BLM defines Carrying Capacity as;
"The maximum stocking rate possible without damaging vegetation or related resources. Carrying capacity may vary from year to year on the same area due to fluctuating forage production."
51. The methods used in determining if an overpopulation exists are set out in 16 U.S.C. ss. 1333 (b)(2) of the WFHBA;
"The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands.” Under the Act, “appropriate management levels” of wild horses are to be based on a current inventory of wild horses and on the basis of ecological balance, which cannot arbitrarily be fixed at a moment in time. This inventory is to be the basis for “determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels . . . determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)”.
16 U.S.C. § 1333 (b)(1) The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” (Emphasis' added.)
52. Plaintiff does not dispute the power of the BLM to remove “excess” horses from a herd or a range, or to conduct removals of whole herds in emergency situations such as fire or drought. What is disputed by the plaintiff is the BLM’s conducting "whole herds" removals under the guise of removing “excess” horses. By the BLM’s own standards, rules and guidelines, “excess” horses are those number of horses that have exceeded the (AML) number set for that particular HMA.
53. An “AML” is the BLM’s idea of the maximum number in any given herd that can graze the area sustainably. Presumably, any number of horses exceeding the number set for the “AML” would be deemed “excess” horses and therefore, those number of horses over and above the set limit for the AML could be deemed as "excess" as they are in numbers over and above the allowable number set for that particular HMA.
Plaintiffs submit that "0" is not an appropriate management level for any HMA in less than emergency situations.
54. The AML for Seaman Range was set at 159, and the current number of herd members for the Seaman Herd is 182. Elementary math and a basic understanding of the English Language will show that the excess number of horses (that number exceeding the number set for the “AML”) on the Seaman Range is 23 horses,.....not all 159.
55. The AML for the White River Herd was set at 90 and the current number is counted at 168. Elementary math and a basic understanding of the English Language will again show that the excess number of horses on the White River Range is 78, ....not all 168.
56. A recent ruling in this court addressed the issue of “whole herd” removals and concluded that the BLM did not have the authority to remove any horses from their historic rangelands unless they were deemed “excess” or removed due to emergency conditions. The court declined to answer as to whether the zeroing-out of whole herds could be considered as a removal of excess horses. (See Colorado Wild Horse & Burro Coalition, et. al., v. Salazar, et. al., Case # 1:06-cv-01609, ( DC District Ct., (Hon.RMC) decided August 5th., 2009) so the question here presented remains ripe for review. The Defendant BLM in the Colorado case initially took the position that the"whole herds" scheduled for removal were “excess animals.” (In Defs.’ Memorandum at 21.) However, the Defendants conceded the point that they were not by abandoning it at oral argument. (See Tr. at 6-7.)
57. Plaintiff submits that there is no authority either in statutory or administrative law that authorizes removal of whole herds from their historic rangelands in less than emergency situations, and that whole herd removals cannot and should not be allowed to occur under the guise of the BLM’s claim of “removal of excess horses.” It is a far stretch for any reasonable mind to imagine that the eradication of whole herds
could in any way be construed as a removal of that herd’s excessive numbers, since all of its numbers will have been removed.”
58. The BLM is authorized to remove only herd-members in excess of the numbers set in the AML, or whole herds in cases of emergencies. Since there has been no claim by the BLM of an emergency situation, by "zeroing out" whole herds and taking away their historic rangelands, the BLM is running afoul not only its own laws, rules, regulations, guidelines and mandates to protect wild horses on their historic rangelands, but of the applicable statutory laws as well.
The BLMs Claim of Insufficient Forage & Limited Water Supply
(a) Insufficient Forage
59. Claims are based on "bare bones" allegations as to "insufficient forage" with no specific information given as to how the determination was arrived at or as to what type of forage is deficient and where, except for mentioned as near water holes which
are shared by grazing cattle that vastly outnumber the wild horses. Moreover, BLM states in the respective EAs that there are no current rangeland studies available for these particular HMAs, but also states that studies are in progress and when complete, "adjustments will be made to the plan, if needed" based upon the findings of the studies. Plaintiff submits that this is a bit like putting the cart before the horse or closing the barn door after the horse has run out. The question begs asking: Why not wait until the rangeland studies are complete before taking action on such a drastic and extreme plan if there is no emergency?
60. Plaintiff submits that it is arbitrary and capricious to remove whole herds of wild horses prior to the completion of any rangeland studies that would validate or dispel defendants allegations that the rangelands are unsuitable for wild horse grazing but suitable for privately owned cows. The Defendant Ely District BLM renewed all grazing permits upon these same lands for the year 2009. Moreover, the indications on some of these permits are that the allotments are in "satisfactory" condition or are "meeting standards." (See Grazing Permit Renewals, Ex.E).
(b) Limited Water Supply
61. Water sources in arid regions are always “limited.” However, the Ely / Lincoln County Districts of Nevada have the largest water supply in the whole of the state with numerous streams, wells, rivers and creeks. Furthermore, there are plans for a great expansion for increased water sources for the entire state of Nevada as is part of the development plans for this area . (See "Ely District Development Plans, ROD Ex.C). See also Notice of Availability of the Final Environmental Impact Statement for the Lincoln County Land Act Groundwater Development and Utility Right-of-Way Project, Nevada
62. lso as a result of the development plans, wildlife areas are being expanded with plans to put water "guzzers" in place so that the wild deer and elk will have water. Plaintiff submits that the defendants have a duty to provide for or allow access to
same for our Nation’s wild horse herds. Plaintiff argues that the problem is not a lack of water sources but a lack of water rights. Nevada is a state that claims rights to all the waters and water sources within the state and, in fact, has been involved with much litigation with the BLM on this matter. A great part of the water problems on federal lands is owing to the fact that more grazing permits than ever are being retired. When that happens, the ranchers, who claim the water rights based upon state law “custom and usage,” shut off their "guzzlers" and other water supplies to the lands as they are no longer needed for their cows. As a consequence, the wild horses are forced to travel further in search of water, sometimes crossing invisible jurisdictional lines and getting themselves into trouble and danger of being shot by the ranchers as “strays.”.
63. There is no doubt that acquiring access to Nevadas waters is a legal, not a geographic problem or based on insufficiencies. Plaintiff submits that despite the difficulties and legalities involved in achieving water rights in Nevada, the BLM nevertheless has a duty to see to it that adequate water is available for the wild horses that roam within their various HMAs. Plaintiff further submits that the defendants have failed in that duty;
"It is BLM policy to conform with applicable state laws and administrative claims procedures for water rights when managing and administering all BLM programs and projects, except as otherwise specifically mandated by Congress. The State Engineer Office in the Division of Water Resources of the Nevada Department of Conservation and Natural Resources, administers water rights programs in Nevada based on beneficial use and the Doctrine of Prior Appropriation. The State of Nevada regulates its water rights
programs using guidance in chapters 533 and 534 of the Nevada Revised Statutes. The BLM will acquire and perfect water rights necessary for public land management purposes according to these state laws and procedures. (Emphasis added.) The BLM also will protect existing water rights of the U.S. by protesting or providing comment
during the state permitting process on applications for new water rights or for changes to existing water rights that may interfere with BLM’s ability to utilize such water for public land management purposes."
"http://www.blm.gov/pgdata/etc/medialib/blm/nv/field_offices/ely_field_office/ely_resource_management/rmppdftext.Par.1543.File.dat/04%20-%20ELY%20PRMP%202007%20Chapter%202.pdf"
BLM’s Failure to Consider other factors and permitted activities that contribute to rangeland degradation renders the whole assessment process as unreliable and erroneous
64. In both the Seaman / White River and Caliente Complex EAs, there is no mention of any other factors or permitted activities upon the same lands that contribute to rangeland degradation. There is no mention of the privately owned cattle and sheep that graze these same lands and outnumber the wild horses at a ratio of approximately 150- to-1. Nor is there any mention of the wildlife that graze there, such as big horn sheep, elk, and mule deer that outnumber the wild horses at a ratio of 3-to-1. Additionally, there is no mentionof the ORV use that is also permitted upon these same lands.
65. A Report by the Ecological Society of America entitled "Quantile Regression Reveals Hidden Bias and Uncertainty in Habitat Models," finds, when compiling statistical models for animals and/or ecological land management, ... "...Any important factor that is not explicitly included as a parameter in a statistical model is implicitly included as a part of the error distribution. When those unmeasured factors interact with the measured factors, the error distribution will be heterogeneous with respect to the variable included in the model. This creates a form of hidden bias." (Emphsis added)
66. Plaintiff submits that there is hidden bias in the EAs that fail to report any other activity upon these lands that contributes to rangeland conditions, and as such, should render the whole assessment as incomplete and unreliable for use as a basis for the removals.
Failure of proof that wild horses are to blame for rangeland degradation
67. Paragraphs (64) through (66) incorporated by reference herein.
BLM’s failure to consider a "full range" of alternative actions
68. In both the Seaman / White River and Caliente Complex EAs, under the "Alternative Actions" section, there is only one "alternative action" listed and that is a "no action" one. Plaintiffs submit that a "no action" plan offers no real alternative and does not meet the requirements of law mandating that a "full range" of alternative actions be considered. Plaintiffs suggest that there are numerous other alternatives that should have been offered for consideration, including but not limited to:
(a) Removal of only part of the herds.
(b) Adjustment in grazing permits as allowed for and in fact encouraged by law in
cases of conflicting resources:
(i) It has been clearly established through CFR 4710.5, that wild horse and burro preservation within their designated critical habitats is of higher priority than continuing livestock authorizations, as BLM is required to consider all options and alternatives to protect their habitat first. CFR 4710.5 states: "If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock."
(c) Adjustments in grazing practices such as "targeted" grazing. Targeted livestock grazing is a low-cost, low-energy input tool for manipulating and improving the species composition, yield, accessibility, nutritive quality, cover, structure, or diversity of vegetation in ways that favor wildlife.
(d) Restorative Measures such as the BLM is obligated to do when rangeland becomes so degraded it can no longer support the domestic and wild life that graze upon it, i.e.: fencing off of most damaged areas, rotating grazing areas, seeding, the installation of "guzzlers." ... etc.
69. Moreover, 43CFR1610.4-5 PUBLIC LANDS "Resource Management Planning, Formulation of Alternatives," states "All reasonable resource management alternatives shall be considered and several complete alternatives developed for detailed study. The alternatives developed shall reflect the variety of issues and guidance applicable to the resource uses. In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, all reasonable variations shall be treated as subalternatives. One alternative shall be for no action, which means continuation of present level or systems of resource use. The plan shall note any alternatives identified and eliminated from detailed study and shall briefly discuss the reasons for their elimination."
BLM’s Failure to Address Unresolved Conflicts
70. NEPA requires BLM to analyze in an EA alternatives that involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA § 102(2) (C)(iii). Contrary to this provision, the Defendant BLM
ignored plaintiffs objections to their plan of whole herd removals as well as the objections and concerns of other wild-horse advocates and some of the locals also. There was no attempt whatsoever by the defendants to resolve the objections or to mitigate the harm the objectors claimed they would incur as a result of the BLM’s actions.
FIRST CAUSE OF ACTION
VIOLATION OF THE WILD FREE-ROAMING HORSES AND BURROS ACT
(i) The BLM’s policy of “zeroing-out” whole herds and the taking away of their historic lands in less than emergency situations is contrary to the provisions of the WFHBA as well as to the legislative intent of the Act
The Act
71. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands,” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” (HAs) and are defined as “the geographic area identified as having been used by a herd as its habitat in 1971,” 43 C.F.R. § 4710.3-1.
72. The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals, determine appropriate management levels and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels), 16 U.S.C. § 1333 (b)(1). The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. §1333(b)(2).(Emphasis added.)
73. Plaintiff does not dispute that the BLM has broad discretionary powers when it comes to its management decisions regarding wild horses and burros. Nor does she dispute the authority of the BLM to remove truly “excess” animals or even whole herds in emergency situations such as drought or fire. However, since the BLM is not claiming that any emergency situation exists within these lands that would serve as a legitimate basis for these “whole herd” removals, the plaintiff does herein allege that these “whole herd” removals and the permanent taking away of their historic rangelands is contrary to the provisions of the Act that mandates that wild horses herds be protected ‘upon the lands in which they lived’ at the time of the passage of the Act. Plaintiffs submit that “0” is not an appropriate management level for wild horse management areas in LESS THAN emergency situations, and that the BLM’s actions to zero out whole herds is contrary to the provisions of the Act.
(ii)The BLM’s policies and practices of “zeroing-out” entire herds of wild horses and the taking away of their historic rangelands is contrary to and nullifies core provisions of the WFHBA and, therefore, is an impermissible delegation unto itself of the lawmaking powers of the legislature, and, as such, violates the United States Constitution (Art.1)
74. Plaintiff does not dispute the broad discretionary power the legislature allows the BLM in making administrative decisions on how best to manage the Wild Horse and Burro Program. Plaintiff does however, submit that in so making the relevant decisions, same must conform with the “core” of the legislative intent of the act. Plaintiff submits that the core of the legislative intent of the WFHBA is to preserve and protect wild horses and burros upon the lands they are known to have lived and roamed in 1971.
75. BLM’s actions and decisions in "zeroing-out” entire herds of wild horses and taking away their historic rangelands nullify significant and integral portions of the WFHBA. In so doing, plaintiff submits that the defendants are impermissibly and unconstitutionally delegating unto themselves the lawmaking powers reserved solely for the United States Legislative branch of government. (U.S. Constitution, Art. 1)
76. In Krause v. Dept. of Employment Services, DC Ct. of Appeals, No. 02-AA-725, the ruling in regards to administrative powers was: "This court defers to an agency's interpretation of the statute it administers, so long as that interpretation is reasonable and consistent with the statutory language." Citing, Franklin, 709 A.2d @ 1176. "A qualifier to the rule of deference is that a court may reasonably expect such agency’s interpretations to be supported by appropriate analysis and consideration," citing Munson v. District of Columbia Dept. of Employment Servs., 71 A. 2d 623, 626-27 (D.C. 1998) Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d. 896, 899-902 (D.C.1995).
77. The BLM’s interpretation of the WFHBA and of their determination that whole herds can be zeroed-out and removed from their historic rangelands is contrary to the statutory language of the WHFBA that mandates that they be protected upon their historic lands. The nullification of the WFHBA by the BLM should not be allowed to continue.
SECOND CAUSE OF ACTION
Violation of the National Environmental Protection Act
Failure of the EAs to be objective and to not reflect subjective value judgments
78. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, requires that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments. (Emphasis added.)
79. Plaintiff submits that the BLM’s analysis was not based on the best available information as crucial information was withheld regarding other uses of the land that also contribute to rangeland degradation among other problems, and that the information thus provided was not objective and reflects the BLM’s subjective and traditionally negative value judgments concerning its obligation to properly manage our country’s wild horses and burros. It is no secret that the BLM and the ranchers are no friends of the wild horses and burros.
80. Paragraphs (64) through (66 ) are herein incorporated by reference. Plaintiff disputes the BLM’s FONSI and submits that the action is a significant federal action and requires the filing of an Environmental Impact Statement.
81. The Interior Board of Land Appeals (IBLA) has held that "a party challenging BLM’s FONSI has the burden of demonstrating with objective proof that the FONSI is based on a clear error of law or demonstrable error of fact, or that the BLM failed to consider a substantial environmental question of significance to the proposed action, or otherwise failed to abide by section 102(2)(C) of NEPA." Biodiversity Conservation Alliance et. el., 171 IBLA 218, 226 (2007).
82. Plaintiff submits that she has met her burden of demonstrating with objective proof that the FONSI is based on clear error of law and demonstrable error of fact, and that the BLM did fail to consider a substantial environmental question of significance to the action, (i.e., the other uses of the land) and otherwise failed to abide by section 102(2)(C) of NEPA.
83. BLM’s finding of no significant impact is in error and necessitates the preparation of an EIS. BLM’s DR is a major federal action approved contrary to NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations. BLM failed to take the requisite hard look at the foreseeable consequences of its actions. BLM failures to comply fully with NEPA and its regulations have been arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, thereby subject to reversal under the APA.
THIRD CAUSE OF ACTION
VIOLATION OF FEDERAL LAND MANAGEMENT ACT
84. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701, et seq. FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.
85. Plaintiff submits that by eradicating whole herds of horses from Seaman, White River and Caliente Complex Herds and by taking away their historic rangelands is not consistent with the multiple use purpose of the FLMA.
FOURTH CAUSE OF ACTION
VIOLATION OF DUE PROCESS
Failure to Notify the U.S. Congress and the Senate as Required by Statutory Law Violates the Due Process Clause of the U.S. Constitution (Art. XIV)
86. FLMA (2) provides:
"Any management decision or action pursuant to a management decision that excludes (that is, totally eliminates) one or more of the principal or major uses for two or more years with respect to a tract of land of one hundred thousand acres or more shall be reported by the Secretary to the House of Representatives and the Senate. If within ninety days from the giving of such notice (exclusive of days on which either House has adjourned for more than three consecutive days), the Congress adopts a concurrent resolution of non-approval of the management decision or action, then the management decision or action shall be promptly terminated by the Secretary. If the committee to which a resolution has been referred during the said ninety day period, has not reported it at the end of thirty calendar days after its referral, it shall be in order to either discharge the commit-tee from further consideration of such resolution or to discharge the committee from consideration of any other resolution with respect to the management decision or action. "
87. Plaintiff has diligently tried to obtain information as to whether or not the defendants complied with this provision of law, but to no avail. Phone calls to the clerk of the House of Representatives indicate there is no record of any notice being filed in
regard to Nevada’s wild horse removals.
88. The total number of acres that will no longer be used as wild horse rangeland is 1.4 million. Even if not counting the cumulative numbers, many of the individual HMAs have well over the prerequisite 100,000 acres necessary to effect this law.
89. Plaintiff submits that the defendant’s failure to give notice as required under the provisions of this law is a violation of due process as guaranteed by the 14th Amendment to the United States Constitution.
PRAYERS FOR RELIEF
WHEREFORE, plaintiff respectfully requests that this Court enter judgment in favor of
plaintiff and grant the following relief:
Issue a declaratory judgment that:
1. Defendants have exceeded their legal authority and abused their discretion in making the determination to remove whole herds from the historic and legally sanctioned and protected rangelands in less than emergency situations.
2. Defendants decisions are arbitrary and capricious in that they were based on incomplete data in EAs as contained no information as to other causes of rangeland degradation and no "reasonable range" of alternatives.
3. Issue a Preliminary Injunction and/or Temporary Restraining Order demanding a stop to the removals pending the outcome of this case and prohibiting disposal by any means of any of the wild horses already removed.
4. That Defendants actions and policies of “zeroing-out” whole herds of wild horses and removing them from their historic rangelands in less than emergency situations violates the provisions of the WFHBA.
5. That defendants actions and policies are contrary to and in fact nullify core provisions of the WFHBA and as such, is an impermissible delegation onto itself of the lawmaking (and breaking) powers reserved for the legislature. (U.S. Constitution, Art.1)
6. Declare that the defendants failure to report the action to the House of Representatives and the Senate as required by law is a violation of the due process clause of the U.S. Constitution. (Am. 14)
7. Award plaintiff costs and expenses related to the prosecution of this case.
8. Award plaintiffs such other relief as the Court deems appropriate.
Respectfully submitted,
_________________, Plaintiff, Pro Se
Christine A Jubic
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
VERIFICATION
STATE OF NEW YORK
COUNTRY OF RENSSELAER
In the Matter of ; Case#_________
Jubic v. Salazar, et. al.,
I, Christine A. Jubic, am the pro se plaintiff in the above mentioned case, and do hereby swear, in lieu of Notary Public and under threat of penalty of perjury, I do attest;
That I am the author of the enclosed motion and complaint and that I have read and understand its contents and to the best of my own knowledge and belief, believe them to be true.
I bring this law suit not with the intention to harass or annoy, but in efforts to address important questions of law that should be reviewed by this Court.
Signed this 29, day of September, 2009
_______________________________
Christine A. Jubic, Plaintiff, Pro Se
118 River Rd.
Johnsonville, NY 12094
(518) 753 - 7791
CJubic@nycap.rr.com
---------------Of course, I was hoping the Motion to ReOpen would go back before Judge Huvelle, but alas, no such luck. Here is the latest Decision, rendered by a Judge Freidman;-----------
ORDER
Plaintiff moves to reopen this case dismissed by Order of September 28, 2009, for lack of standing. See accompanying Memorandum Opinion. A Motion for Reconsideration of a final order need not be granted "unless the district court finds that there is an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 Fed. 3d. 1205, 1208 (D.C. Cir. 1996) The motion provides no grounds for vacating the dismissal order. Accordingly, it is by the Court this 16th day of October, 2009,
ORDERED that plaintiffs motion to reopen the case is DENIED.
Dated" Oct 16th, 2009 JUDGE Z. FREIDMAN
US District Court
-------------------------
I got news for Judge Freidman, an Order dismissing an action "without prejudice"
IS NOT a final order - particularly when the issues have not been decided on the merits.....
Dismissal Without Prejudice: A Deadly Trap For the Unwary!
by W. Dudley McCarter1 and Christopher L. Kanzler2
Generally, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, exceptions to this general rule. For example, if the suit is dismissed by the court for failure to state a claim, the dismissal, even though without prejudice, may be a final adjudication. This article will discuss the difficulties for the trial practitioner that are created by this exception to the general rule.
I. General Principles
"A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."3 The trial court "shall freely grant leave to amend" a deficient pleading.4 The trial court "is not required sua sponte to grant leave to amend a deficient pleading" but, instead, a plaintiff must request leave to amend. If a "plaintiff fails to seek leave to amend, . . . the court may assume that he was satisfied with the pleading."5
"[A] party does not have an absolute right to amend pleadings. . . . The denial of an amendment is presumed correct and the burden is on the proponent to show that the trial court palpably and obviously abused its discretion."6 "The purpose for liberally permitting amendments is to permit matters to be pleaded, [that] were overlooked or unknown when the action was originally filed."7
The decision to dismiss a petition with or without prejudice rests within the sound discretion of the trial court.8 When the trial court does not specify its reasons for dismissing a suit, the appellate court will assume that the trial court acted for one of the reasons set forth in the motion to dismiss.9
II. Is a Dismissal Without Prejudice a Final Judgment That Must Be Appealed? Generally, the Answer is "No"
A. Generally, Dismissal Without Prejudice is Not a Final Appealable Judgment
Supreme Court Rule 67.03 states: "Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify." The general rule is . . . that "a dismissal without prejudice is not a final judgment," and, therefore, cannot be appealed.10 "In a case of a dismissal without prejudice, a plaintiff typically can cure the dismissal by filing another suit in the same court; hence, a dismissal without prejudice is not a final judgment for purposes of appeal. In most instances, a dismissal without prejudice does not constitute an adjudication on the merits."11
Further, when a suit is dismissed voluntarily, without prejudice, the trial court has not ruled on the merits of the "plaintiff's cause of action" and the dismissal does not "preclude [the plaintiff] from refiling [the suit] in the same forum." Thus, a dismissal under these circumstances "is not a final judgment from which an appeal may be taken."12 For example, in Doe v. Visionaire Corp., plaintiffs filed their petition using pseudonyms because of their fear of embarrassment and humiliation.13 Defendants filed a motion to dismiss the petition for failure to include plaintiffs' real name in the petition pursuant to Rule 55.02. The trial court granted the motion to dismiss, without prejudice, and ordered plaintiffs to file an amended petition using their real names. The plaintiffs chose not to amend their petition, and instead appealed the trial court's order of dismissal without prejudice.
The Court of Appeals, sua sponte, dismissed the appeal for lack of jurisdiction. The court held that the general rule is that a dismissal without prejudice is not a final appealable judgment; the exception to this general rule (discussed below) did not apply because plaintiffs could refile the same action in the same forum; they just had to use their real names.
B. If a Judgment Does Not Dispose of All Issues and All Parties, and is Not Certified Final for Purposes of Appeal, it is Not a Final, Appealable Judgment
As held in State ex rel. Sullivan v. Roberts,14 "[a]n appealable judgment is one [that] disposes of all issues in the case. . . . If multiple claims are asserted and the court does not adjudicate all claims, the judgment is not final. The issues resolved by the trial court are appealable only if the trial court makes an express determination that there is no just reason for delay of the appeal."15 In Sullivan, the Court of Appeals was without jurisdiction to determine the appeal of the trial court's dismissal of plaintiff's petition because the judgment did not dispose of pending counter-claims, and failed to state that no just reason for delay of the appeal existed.16
"For a judgment to be final and appealable it must dispose of all parties and all issues in the case and leave nothing for future determination."17 In Warren v. Mercantile Bank of St. Louis,18 the trial court granted Mercantile Bank's motion for summary judgment as to all but one count. Later, the trial court granted the bank's motion to dismiss or, in the alternative, motion to make more definite and certain on the only remaining count, and ordered appellants to file a third amended petition as to this remaining count.
Citing Rule 55.27, the Warren court held that "if a motion for a more definite statement 'is granted and the order of the court is not obeyed within ten days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.'" The Court of Appeals held that even though appellant failed to file a third amended petition, the count was "still pending until stricken or dismissed by the trial court." Therefore, all issues and all claims had not been disposed of and the Court of Appeals had no jurisdiction over the appeal because there was no entry of a final judgment.19
C. If an Order or Ruling is Not Denominated "Judgment" and Signed by a Judge, it is Not a Final, Appealable Judgment
A prerequisite to appellate review is that there be a final judgment. If the order of the trial court was not a final judgment, [the appellate] Court lacks jurisdiction and the appeal must be dismissed. . . .20 The requirement that a trial court must "denominate" its final ruling as a "judgment" is not a mere formality. . . .21 [T]he written judgment must be signed by the judge and must be designated "judgment." Whether . . . "judgment" appears . . . at the top of the signed writing, [or] within the body of the writing," or in the docket sheet, it must be clear from the writing that the document or entry is being "called" a "judgment" by the trial court [in order to be appealable].22
III. Exception to General Rule: Involuntary Dismissal, Even Without Prejudice, May be a Final Adjudication of Claims
Under the general rule, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. There are, however, clear exceptions to this rule. A dismissal without prejudice may operate to preclude the party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum.23
The fact that a judgment is expressly denominated "without prejudice," or is determined to be "without prejudice" under Supreme Court Rule 67.03, does not end the analysis of whether the judgment is final for purposes of appeal as an exception to the general rule.24 Instead, it is necessary to determine whether the judgment amounts "to a mere dismissal of the petition, or [whether it] was . . . a dismissal of the action itself."25
A. Dismissal Without Prejudice for Failure to State a Claim is Final Judgment if Plaintiff Elects Not to Amend and, Instead, Stands on the Petition
Generally, a dismissal without prejudice of a petition for failure to state a claim, "does not preclude a plaintiff from reasserting the claim on new factual allegations."26 This is because
determination has [not] been made that [the] plaintiff has no cause of action and the claim itself has not been dismissed. The rule is consistent with [Supreme Court] Rule 67.01 which permits a party to bring another civil action for the same cause that has been dismissed without prejudice unless the civil action is otherwise barred.27
However, as discussed below, Supreme Court "Rule 67.01 does not . . . permit the refiling of a petition previously determined not to state a claim" because of the preclusive effect of res judicata.
"[A] dismissal without prejudice may preclude the party from refiling the action for the same cause and may be res judicata of what the judgment actually decided. For example, when a petition is dismissed without prejudice for failure to state a claim and the party elects not to plead further, this amounts to a determination that the plaintiff has no cause of action."28
In Mahoney v. Doerhoff Surgical Services, the Supreme Court stated: "A dismissal without prejudice may nevertheless operate to preclude the party from bringing another action for the same cause, and may nevertheless be res judicata of what the judgment actually decided."29
The Court went on to state that:
The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of the dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed. (emphasis added).30
The Court explained that this is an exception to the general rule set forth in Rule 67.03, and "serves to preserve to a plaintiff rights that otherwise would be lost from a dismissal, which, although without prejudice, becomes res judicata of what that judgment actually decides."31
B. When a Prior Suit is Involuntarily Dismissed by the Court, Without Prejudice, on the Defendant's Motion for Failure to State a Claim, Can the Plaintiff File a New Suit on the Same Cause of Action? No, According to Bachman v. Bachman
In Bachman v. Bachman,32 plaintiff filed a malicious prosecution, "abuse of process, invasion of privacy, and civil conspiracy" action against the defendants. "Defendants filed separate motions to dismiss" for failure to "state a claim upon which relief could be granted." The trial court sustained those motions and granted plaintiff 30 days to file an amended petition. Plaintiff filed an amended petition and defendants again filed motions to dismiss. The trial court again sustained the defendants' motions and entered a judgment dismissing the suit without prejudice. Plaintiff did not appeal, but several months later filed a new case with a petition that was nearly identical to the amended petition dismissed in the prior action. Defendants again filed motions to dismiss, contending that the second suit was barred by res judicata. The trial court agreed, sustained defendants' motions to dismiss the second suit, and the Court of Appeals affirmed.
"The dismissal of a petition for failure to state a claim, without prejudice, does not preclude a plaintiff from reasserting the claim on new factual allegations. This is because no determination has been made that plaintiff has no cause of action and the claim itself has not been dismissed."33 "The dismissal without prejudice for failure to state a claim [does, however, prevent] a plaintiff from refiling the action in its original form." "[A] dismissal without prejudice may be 'res judicata' of what the judgment actually decided." In Bachman, the court dismissed the first suit without prejudice on the grounds that the allegations did not state a claim for relief. Because the petition in the second action was, in all material respects, virtually identical to the petition that was previously dismissed in the first action for failure to state a claim, the trial court did not err in dismissing the second action on the grounds that it was barred by res judicata.34
Supreme Court "Rule 67.01 does not . . . permit [the] refiling of a petition previously determined not to state a claim. The preclusive effect of direct estoppel explains why a plaintiff may appeal the dismissal of a petition without prejudice if the plaintiff has elected to stand on the dismissed petition and not to plead further. In that situation, the dismissal is considered a final judgment for purposes of appeal."35
"The granting of a motion to dismiss for failure to state a claim is a final judgment on the merits sufficient to raise the defense of res judicata in a later proceeding."36 "[I]t is immaterial that the wording of the counts has been changed [in a subsequently filed petition] in an apparent attempt to correct the defects in the original pleadings."37 "[T]here is no requirement that the trial judge sua sponte grant leave to amend a deficient pleading."38 In short, where the judgment is denominated without prejudice, but is an involuntary dismissal for failure to state a claim, the judgment is a determination of the merits of the action, not just the petition. An involuntary dismissal on the grounds of failure to state a claim is an exception to the general rule that a dismissal without prejudice is not a final, appealable judgment.
C. Involuntary Dismissal Without Prejudice, on Other Grounds, May Also be a Final, Appealable Judgment
In Mahoney v. Doerhoff Surgical Services,39 the trial court dismissed the plaintiff's medical malpractice suit on the grounds that the plaintiff failed to comply with § 538.255, RSMo, requiring that plaintiff file an affidavit confirming receipt of a health care provider's written opinion of merit regarding the claim. The defendant challenged appellate court jurisdiction on the grounds that the dismissal was without prejudice and, therefore, it was not a final, appealable judgment. The Supreme Court held that the judgment was final and appealable even though it was a dismissal without prejudice.
The dismissal for failure to provide the health care affidavit was a dismissal of the action and not merely the petition; it was a judgment that the action may not continue. When the effect of the order is to dismiss the action and not merely the pleading, then the judgment is final. "The dismissal without prejudice for failure of the petition to state a claim, when the party elects not to plead further, amounts to a determination that the plaintiff has no action. In such a case, the judgment of dismissal -- albeit without prejudice -- amounts to an adjudication on the merits and may be appealed.40 Plaintiff did not seek an order for an extension of time to produce the required affidavit, but stood on his petition. It would be futile to put plaintiff to the precondition of filing a new petition.
The trial court granted the defendant's motion to dismiss for lack of personal jurisdiction and dismissed the case, without prejudice, in Chromalloy American v. Elyria Foundry Co.41 Plaintiff appealed and the Supreme Court determined that it was a final and appealable judgment. While noting the general rule that a dismissal without prejudice is not an appealable judgment, the Court recognized that "[a]n appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. The trial court's dismissal had such a practical effect." "[A] dismissal without prejudice that a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken." Here, however, the plaintiff had no such option. To refile the case "would be an exercise in futility. The trial court's dismissal had the effect of terminating [the plaintiff's] claim in the form in which it was cast." "By dismissing the petition on the basis of personal jurisdiction, the trial court implicitly rejected those factual allegations [forming] the basis for [plaintiff's] claim of jurisdiction. This effectively precluded the plaintiff from refiling its claim in Missouri."42
In Carothers v. Carothers,43 the plaintiff filed an action against her former husband for violation of the Missouri Wire Tap Act, §§ 542.400, et seq., RSMo. The trial court granted the defendant's motion to dismiss for failure to state a claim, finding that the husband's use of conversations recorded on a telephone answering machine did not constitute an interception of the communication and that the answering machine was not an electronic device as defined in the act. The trial court's judgment dismissing the plaintiff's petition was silent as to whether the dismissal was with or without prejudice. Thus, under Rule 67.03, the judgment was considered a dismissal without prejudice.
The Court of Appeals found that even though the dismissal was without prejudice, it was a final judgment and, therefore, appealable under the exception to the general rule. Specifically, since the trial "court held that plaintiff's claims were not covered by the statute, the judgment had the practical effect of terminating the litigation brought under the statute." The Court of Appeals reasoned that "[i]t would be futile for plaintiff to reform her petition and re-offer her assertion that defendant violated the Missouri wiretapping statute in the same court. Such facts render the judgment final."44
Similarly, in WEA Crestwood Plaza v. Flamers Charburgers,45 the trial court dismissed a landlord's suit against a tenant without specifying whether the dismissal was with or without prejudice. On the landlord's appeal, the appellate court first addressed, sua sponte, its jurisdiction and found that jurisdiction existed. "Although normally under Rule 67.03 an involuntary dismissal is deemed to be without prejudice unless the court specifies otherwise in its order of dismissal, a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action in the form cast."46 "A dismissal 'without prejudice' for failure to state a claim effectively bars a plaintiff from refiling the action in its original form."47 "Since the trial court granted the tenant's motion to dismiss, which asserted that the landlord failed to state a claim upon which relief [could] be granted, the dismissal [had] the practical effect of terminating the Landlord's action."48
IV. Dismissal Under Rule 67.01 May Have Res Judicata Effect
The doctrine of res judicata "bars a plaintiff from bringing suit if the same cause of action has already been dismissed with prejudice."49
The doctrine of res judicata precludes parties from contesting matters that the parties have had a full and fair opportunity to litigate. The doctrine applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.50
Res judicata "applies not only to points and issues upon which . . . [a judgment was rendered], but [also] to every point belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time" of the litigation.51 A basic principle of res judicata is that a party is barred from bringing the same cause of action, and that a claim based on an alternative legal theory, but growing out of the same facts and filed against the same party, is considered the same cause of action.52
Missouri courts have held that res judicata principles are to be applied to dismissals under Rule 67.01, just as they are applied in cases decided under the common law doctrine itself -- even when the case was previously dismissed without prejudice and without reaching the merits.53
"[A] dismissal with prejudice, assuming that all claims are adjudicated and all parties are accounted for, acts as a bar to any further litigation of the claims therein involved." A dismissal with prejudice finally decides that litigation and is appealable.54
V. Conclusion
In short, a dismissal without prejudice may, under the exceptions to the general rule, preclude a party from bringing another action for the same cause and may be res judicata of what the judgment actually decided. Although it is difficult to ascertain a bright line test for when a dismissal without prejudice has this effect, if the dismissal was voluntary or was an involuntary dismissal for failure to prosecute, the dismissal is not a final judgment. On the other hand, if the dismissal, for example, was involuntary, is denominated a judgment, and is a dismissal for failure to state a claim, it may constitute an adjudication on the merits and is a final judgment even though it may be denominated without prejudice. Thus, trial attorneys cannot always rely solely on the words without prejudice in a judgment to determine whether the judgment is appealable.
Endnotes
1 Mr. McCarter is a principal in the St. Louis firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1975 from the University of Missouri-Columbia. He served as president of The Missouri Bar in 1993-1994.
2 Mr. Kanzler is a senior associate with the firm of Behr, McCarter & Potter, P.C. He received his J.D. in 1994 from St. Louis University.
3 Balke v. Ream, 983 S.W.2d 579 (Mo. App. W.D. 1998).
4 Jordan v. City of Kansas City, 972 S.W.2d 319, 322 (Mo. App. W.D. 1998); Supreme Court Rule 67.06.
5 Id. at 322-23.
6 Jaron Corp. v. Pellet, 866 S.W.2d 897, 902 (Mo. App. S.D.1993).
7 Rhodus v. Wheeler, 927 S.W.2d 433 (Mo. App. W.D. 1996), citing Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).
8 Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo. App. E.D. 1992).
9 Johnston v. Norrell Health Care, Inc., 835 S.W.2d 565, 567 (Mo. App. E.D. 1992). See also Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793 (Mo. App. E.D. 1996) (where the trial court dismisses an action without stating the grounds, the Court of Appeals will "presume the dismissal was based upon one of the grounds" raised in the defendant's motion to dismiss and will affirm if any such grounds can sustain the trial court's dismissal); Shaver v. Shaver, 913 S.W.2d 443, 444 (Mo. App. E.D. 1996).
10 Waltrip v. Davis, 899 S.W.2d 147 (Mo. App. E.D. 1995).
11 Vernor v. Missouri Board of Probation and Parole, 934 S.W.2d 13, 14 (Mo. App. W.D. 1996).
12 A. L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998).
13 13 S.W.3d 674 (Mo. App. E.D. 2000).
14 948 S.W.2d 709 (Mo. App. E.D. 1997).
15 Id. See also Supreme Court Rule 74.01(b).
16 Id. See also Curators of the University of Missouri v. St. Charles County, 985 S.W.2d 810 (Mo. App. E.D. 1998) (judgment dismissing one count of counterclaim not final until second count was voluntarily dismissed).
17 Warren v. Mercantile Bank of St. Louis, 976 S.W.2d 630 (Mo. App. E.D. 1998), quoting Petersen v. Farberman, 698 S.W.2d 554 (Mo. App. E.D. 1985).
18 976 S.W.2d 630 (Mo. App. E.D. 1998).
19 Id. at 632.
20 City of St. Louis v. Hughes, 950 S.W.2d 850, 852 (Mo. 1997), quoting Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) ("[a]n appealable judgment disposes of all issues in the case, leaving nothing for future determination").
21 Id. at 853. See also A.L. v. Peeler, 969 S.W.2d 262 (Mo. App. E.D. 1998) (memorandum and orders signed by judge not final "judgment").
22 Id.
23 Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc. 1997).
24 See Carothers v. Carothers, 977 S.W.2d 287 (Mo. App. W.D. 1998) citing Chromalloy, 955 S.W.2d at 3.
25 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing White v. Sievers, 221 S.W.2d 118, 122 (Mo. banc 1949).
26 See Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999), citing Mahoney v. Doerhoff Surgical Services, 807 S.W.2d 503 (Mo. banc 1991); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996).
27 Id.
28 State ex rel. State of Ill., 920 S.W.2d at 117; Mahoney, 807 S.W.2d at 506. See also Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962) (dismissal without prejudice for failure to state a claim upon which relief can be granted was appealable where plaintiff chose to stand on that petition); Meadows v. Jeffreys, 929 S.W.2d 746 (Mo. App. S.D. 1996) ("[a] dismissal without prejudice for failure to state a claim upon which relief can be granted . . . [can] be tantamount to a determination that a plaintiff has no cause of action, and can result in a final, appealable judgment").
29 807 S.W.2d at 506.
30 Id., citing Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962).
31 Id. citing Healy v. Atchison, Topeka & Santa Fe R.R., 287 S.W.2d 813, 815 (Mo. 1956). In Molasky v. Brown, 720 S.W.2d 412, 415 (Mo. App. W.D. 1986), the Court of Appeals for the Western District expressly found that the trial court's dismissal of plaintiff's petition was not on the grounds of failure to state a claim. Further, the court held that the underlying dismissal was not a final, appealable judgment because it did not dispose of all claims and all parties. Also, see Helms v. American States Ins. Co., 886 S.W.2d 220 (Mo. App. W.D. 1994) (dismissal without prejudice of an insurance petition seeking uninsured motorist benefits was a dismissal of petition and not dismissal of action itself and thus there was no final judgment); Ampleman v. Schweiss, 969 S.W.2d 862 (Mo. App. E.D. 1998) (court held that dismissed action on the grounds of failure to state a claim and sovereign immunity was without prejudice and not a final appealable order).
32 997 S.W.2d 23 (Mo. App. E.D. 1999).
33 Id at 25, citing Mahoney, 807 S.W.2d at 506, and Jones, 920 S.W.2d at 117.
34 Id. at 26.
35 Id., citing Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), Mahoney, 807 S.W.2d at 506 and Jones, 920 S.W.2d at 117.
36 U.S. Fidelity v. Commercial Union, 943 S.W.2d 640, 642 (Mo. banc 1997); Greening v. Klamen, 719 S.W.2d 904, 906 (Mo. App. E.D. 1986).
37 Greening, 719 S.W.2d at 906.
38 Id.
39 807 S.W.2d 503 (Mo. banc 1991).
40 Id. at 506, citing Hasemeier v. Smith, 361 S.W.2d, 697, 699 (Mo. banc 1962) and Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985).
41 955 S.W.2d 1 (Mo. banc 1997).
42 955 S.W.2d at 3.
43 977 S.W.2d 287 (Mo. App. W.D. 1998).
44 Id. at 289, citing Chromalloy Am. Corp. v. Elyria Foundary, 955 S.W.2d 1, 3 (Mo. banc 1997). Another example of a dismissal without prejudice that constitutes a final, appealable order includes a dismissal based on lack of jurisdiction. Siampos v. Blue Cross and Blue Shield of Missouri, 870 S.W.2d 499 (Mo. App. E.D. 1994). See also Stonebarger v. Emerson Electric Co., 668 S.W.2d 187 (Mo. App. E.D. 1984) (dismissal "without prejudice for lack of subject matter jurisdiction" was appealable); Siefert v. Leonhardt, 975 S.W.2d 489 (Mo. App. E.D. 1998) (dismissal without prejudice for lack of standing has res judicata effects and is appealable); State ex rel. State of Ill. v. Jones, 920 S.W.2d 116 (Mo. App. E.D. 1996) (dismissal based on failure to join a party was "an adjudication on the merits" that could be appealed, even though dismissal was without prejudice); City of Chesterfield v. DeShetler Homes, Inc., 938 S.W.2d 671, 673 (Mo. App. E.D. 1997) ("[A]n appeal from . . . a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum."); Davis v. Baylor Univ., 976 S.W.2d 5 (Mo. App. W.D. 1998) (dismissal on grounds that plaintiff had not demonstrated sufficient minimum contacts with Missouri to subject defendant to personal jurisdiction effectively precludes plaintiff from refiling his claim in Missouri and, therefore, it is an appealable judgment).
45 ___ S.W.3d ___ (Mo. App. E.D. 2000).
46 Id., citing Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo. App. E.D. 1999).
47 Id., citing Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo. App. E.D. 1999).
48 Id.
49 Williams v. Rape, 990 S.W.2d 55 (Mo. App. W.D. 1999).
50 U.S. Fidelity, 943 S.W.2d at 641, citing State ex rel. Trotter v. Cirtin, 941 S.W.2d 498, 499 (Mo. banc. 1997).
51 King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495 (Mo. banc 1991).
52 Siesta Manor, Inc. v. Community Federal, 716 S.W.2d 835 (Mo. App. E.D. 1986). See King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495, 501 (Mo. banc 1991) (res judicata "applies not only to points and issues upon which the court was required by the pleadings and proof to form an opinion and pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time").
53 Vilsick v. Standard Insulations, Inc., 926 S.W.2d 499, 501 (Mo. App. E.D. 1996) (Rule 67.01 "extends res judicata principles to cases dismissed with prejudice and serves as a mechanism to terminate litigation").
54 Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo. App. E.D. 1985), citing Rule 67.03 and Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo. App. E.D. 1983) (a dismissal with prejudice acts as a bar to any further litigation of the claims involved, assuming that all claims are adjudicated and all parties are accounted for. A dismissal with prejudice finally decides that litigation and is appealable).
http://legal-eaze.blogspot.com/2009/10/dismissal-without-prejudice-deadly-trap.html
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So ah, can ya'all guess at what my next move will be? U got it - A Motion for Reconsideration of the Denial of my Motion to Reopen.....
Stay tuned to this station for the never-ending saga of our attempts to save the Ely Herds and give the Dept of the Ulterior (Motives) the Bureau of Lies and Mismangement their just dues....
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