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Duval Ranching Co. v. Glickman

ELR Citation: 27 ELR 21292
Nos. CV-N-95-38-ECR, 965 F. Supp. 1427/(D. Nev., 03/14/1997)

The court dismisses claims by ranchers that the U.S. Forest Service interfered with their water sources, water rights, and rights-of-way pertaining to four springs in Nevada. The ranchers alleged violations of the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), and state law. The court first holds that it does not lack subject matter jurisdiction for failure to exhaust administrative remedies. There is a genuine issue of material fact as to exhaustion under the APA, and there appear to be no administrative remedies to exhaust before suing under NEPA or the FWPCA. The court next holds that most of the ranchers' challenges stem from "final" agency actions. The ranchers' allegations of interference with water rights challenge a final agency action if the Forest Service caused them to receive less water than they would have otherwise, and the alleged interference inflicts concrete injury and affects their day-to-day activities. The Forest Service's alleged interference with the ranchers' rights-of-way is also final agency action, as is the Forest Service's alleged damage of water sources with reckless disregard for ownership and without the ranchers' input. However, the Forest Service's alleged threats regarding the initiation of lawsuits and enforcement of regulations are not "final" agency actions.

The court next holds that the ranchers lack standing on their NEPA claims. They may have an "economic" interest in the springs, but they cannot have an environmental interest in them. The court then refuses to abstain from determining the ranchers' water rights even though there is an ongoing water rights adjudication involving the area before the state engineer. Abstention is always discretionary. The court further holds that it lacks subject matter jurisdiction over the ranchers' FWPCA claim, because they failed to comply with §505(b)'s notice requirement. It also lacks jurisdiction over the ranchers' takings claims, because the ranchers may not maintain a suit in equity where a post-deprivation suit for damages is available. Also, the court dismisses four causes of action regarding title challenges under the APA for lack of subject matter jurisdiction. Congress intended the Quiet Title Act to be the exclusive cause of action for challenging the U.S. title to real property. The court declines to exercise supplemental jurisdiction over the ranchers' state-law claims. Finally, the court holds meritless the ranchers' claims that the Forest Service violated Executive Order No. 12630, lacks legal authority to promulgate regulations governing national forest land or to regulate their asserted rights-of-way, violated its own manual, violated their civil rights, and violated their due process rights.

Counsel for Plaintiff
Gary D. Woodbury
1053 Idaho St., Elko NV 89801
(702) 738-3101

Counsel for Defendants
Shirley Smith, Ass't U.S. Attorney
U.S. Attorney's Office
100 W. Liberty St., Ste. 600, Reno NV 89501
(702) 784-5438

Claire E. Douthit
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000